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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
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9512 clicks; posted to Main » on 05 Oct 2012 at 11:44 AM (2 years ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2012-10-05 04:00:31 PM  

MaudlinMutantMollusk: We need a Constitutional amendment ending lifetime appointment to the Supreme Court Scalia.

 
2012-10-05 04:17:38 PM  

Bashar and Asma's Infinite Playlist: Scalia should only get 3/5ths of the vote of the other justices.


Only his heart is black.

And since nobody seems to have said it, I will: the man is a coont.
 
2012-10-05 04:34:02 PM  

Theaetetus: 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.


Which would be a great argument, except that jet planes didn't exist in 1868, but sodomy laws and hetero-only marriage did. Trying to look to 1868 to see what they thought about jet planes would be a perfectly logical thing to do if they existed then, just as it is perfectly logical to look to the sodomy and marriage laws of 1868 to see what the original public meaning of the 14th Amendment was when we're trying to apply it to sodomy and marriage.

Theaetetus: 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.


Really? You never even replied to me in the other thread. And no one who did 'owned' me in any way, shape, or form. Nice attempt at revisionist history though. Here are some of the replies to me from the other thread:

serial_crusher: Bears repeating. Thank you for putting it so much more eloquently than I did.


Teiritzamna: Sigh - people on the politics tab think in terms of politics and thus project that upon the Court. This tab generally fails to understand what drives the Justices is Ideology, which, while it can align with some of the political parties, is actually very different. Thanks for attempting to actually explain J. Scalia's position here. I find him to be 100% wrong here, and generally disagree with the man in most circumstances (outside of Admin Law, where Scalia is like the god damn batman) but even a liberal "living constitution" lawyer like meself finds the mischaracterization and general disrespect shown to Nino on these threads to be a bit much. Its important to know why he is wrong, rather than just having a vitriolic response.


MasterThief: Thank you! Someone who gets it.


The only comments attacking my position were one from a person who didn't understand the difference between the 5th Amendment and the 14th:

Philip Francis Queeg: The 5th amendment doesn't apply to the states? Wut?


and one other very polite response from a person who understood what Scalia is arguing, but simply disagrees with that approach:

Thats_Not_My_Baby: These things are correct. But it also brings around the question, do we want to govern ourselves based on what men from the 1860's thought, or do we want to govern ourselves based on how we think? And that is why there are different theories of constitutional interpretation. Do you want to embody the spirit of the document and the values within and apply it to our times, or do you want to govern rigidly on the what we think the were the intentions of men long dead.


Please feel free to go find the post in the other thread that 'owned' me.

/biatch.
 
2012-10-05 04:44:00 PM  

Talondel: Theaetetus: 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.

Which would be a great argument, except that jet planes didn't exist in 1868, but sodomy laws and hetero-only marriage did.


Which would be a great argument, except that I addressed that in the immediately following paragraph, which I repeat here for your convenience:
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.
It is a rule of statutory interpretation that where Congress knows about something, but decline to mention it, they must have not intended to address it. Congress did not write any exceptions for limiting the 14th amendment's application to marriage or sodomy, which they surely knew existed, so therefore, they must not have intended any such exception to exist.

But yes, you were not owned there. Just here. I withdraw my accusation.
 
2012-10-05 05:06:46 PM  

HotWingConspiracy: Yet another article of him openly declaring he decides verdicts prior to actually hearing cases, and nobody seems to care.


Yawn. Wake me up when you're talking about something I care about.
 
2012-10-05 05:19:24 PM  

Theaetetus: But yes, you were not owned there. Just here. I withdraw my accusation.


Thank you. Now allow me to retort.

Theaetetus: It is a rule of statutory interpretation that where Congress knows about something, but decline to mention it, they must have not intended to address it.


Close, but not quite. First off, there is no such cannon of construction as the one you claim. Second, if you're going to claim that there's a particular cannon of construction that applies, you should refer to it.

The closest cannon of construction that could apply to your argument is "Expressio unius est exclusio alterius" which means that the express statement of one or more exceptions implies the exclusion of any other exceptions. The 14th Amendment doesn't list any exceptions, so that cannon of construction would not apply.

Working against your argument is the "Clear statement rule" which can be summed up as "When a statute may be interpreted to abridge long-held rights of individuals or states, or make a large policy change, courts will not interpret the statute to make the change unless the legislature clearly stated it." Hence we the existence of sodomy laws in all the states at the time of the 14th Amendment is relevant. It shows that if the 14th Amendment was intended to invalidate sodomy laws, it would have been a 'large policy change' and also would have abridged 'long-held rights of . . . states'. Therefore, if there was universal agreement about sodomy laws, we should not assume the 14th Amendment was intended to strike them down unless it does so explicitly (like the 13th Amendment did when it abolished slavery and involuntary servitude).

What's worse is that the cannon of construction you made up wouldn't even be your best argument if it actually existed. You're better off arguing that the 1868 sodomy laws didn't actually target homosexual conduct or consensual conduct. So to the extent that those laws did exist in 1868, they don't actually support Scalia's contention that people in 1868 would have universally condemned consensual homosexual activity because the 1868 sodomy laws didn't target consensual homosexual activity (they only targeted non-consensual activity and applied to homo and hetero conduct equally).

This is the argument Justice Kennedy used to counter Scalia in Lawrence v. Texas. (Starting with the paragraph that begins "At the outset" and continuing for the next 6 paragraphs).

If you were paying attention, you would have noted that I already stated that I disagree with Scalia. Given that I disagree with him, you should be able to infer that I know and understand the arguments against his position. Your attempts to attack his position are poor at best. Your belief that they are in fact, my position, is also mistaken. The posters I quoted from the other thread above seem to understand this (note how they mention that they appreciate me articulating what Scalia's position is, not that they necessarily agree with it). You, for some reason, seem incapable of understanding this.

In any event, your attempt to attack Scalia's position (which is not mine) is poor. You'd get a B- at best. Justice Kennedy's argument (outlined above) is far superior. Don't feel bad, Justice Kennedy's a smart guy, so you shouldn't be bothered by the fact that you're not yet up to his (or my) level.
 
2012-10-05 05:21:15 PM  

WorldCitizen: Because People in power are Stupid: By his own arguments the 2nd amendment only pertains to antiquated black powder rifles.

Well, it says "arms" not guns. So maybe some cannons as well.

Of course, if you took the Constitution very literally, it does just say arms. Nuclear arms? Chemical arms? Biological arms? And I do remember at least one Farker arguing that in fact, based on the 2nd Amendment, Americans have the right to bear nuclear arms.


You do have that right. However, everyone else also has the right to ensure that they are not killed because your nuclear arm is HIGHLY valuable. Everyone and their brother would be trying to steal it. Therefore it stands to reason that the government could require you to demonstrate that you have the capability to defend that nuclear weapon from being taken from you.

But let's face it. You do have the right to own a nuclear weapon, because if you DID own a nuclear weapon, who the hell is going to tell you otherwise? Trust me on this one ;)
 
2012-10-05 05:24:13 PM  
I'm a VERY strict constitutionalist. And Scalia pisses me off.
 
2012-10-05 05:31:22 PM  

kim jong-un: WorldCitizen: Because People in power are Stupid: By his own arguments the 2nd amendment only pertains to antiquated black powder rifles.

Well, it says "arms" not guns. So maybe some cannons as well.

Of course, if you took the Constitution very literally, it does just say arms. Nuclear arms? Chemical arms? Biological arms? And I do remember at least one Farker arguing that in fact, based on the 2nd Amendment, Americans have the right to bear nuclear arms.

You do have that right. However, everyone else also has the right to ensure that they are not killed because your nuclear arm is HIGHLY valuable. Everyone and their brother would be trying to steal it. Therefore it stands to reason that the government could require you to demonstrate that you have the capability to defend that nuclear weapon from being taken from you.

But let's face it. You do have the right to own a nuclear weapon, because if you DID own a nuclear weapon, who the hell is going to tell you otherwise? Trust me on this one ;)


Well the actual cases the Court decided on the 2nd Amendment contain plenty of discussion about the meaning of the word 'arms' as it relates to the 2nd Amendment:

Before addressing the verbs "keep" and "bear," we interpret their object: "Arms." The 18th-century meaning is no different from the meaning today. 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).

The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham's legal dictionary gave as an example of usage: "Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms." See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6, p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke, 42Tex. 455, 458 (1874) (citing decisions of state courts construing "arms"). Although one founding-era thesaurus limited "arms" (as opposed to "weapons") to "instruments of offence generally made use of in war," even that source stated that all firearms constituted "arms." 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language37 (1794) (emphasis added).

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35-36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
 
2012-10-05 05:35:58 PM  
Accidentally added the comment before I finished:

Given the interpretation above, the 2nd Amendment would not apply to things that an individual person could not carry and use on their own. So it would not apply to mortars, missiles, nuclear weapons, or other weapons that would have been referred to at that time as 'ordinance' (or as it is now spelled, ordnance).
 
2012-10-05 05:54:40 PM  
The match has been called:
Talondel: 1
Theaetetus: 0

Talondel: Just what is your position?
 
2012-10-05 06:16:54 PM  

Gyrfalcon: 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.


THIS.

Scalia is the #1 domestic enemy of the Constitution.

I'm reminded of the officer in Vietnam who (without irony) said "We had to destroy the village to save the village". Scalia epitomizes that mentality.
 
2012-10-05 06:37:40 PM  

Talondel: Theaetetus: It is a rule of statutory interpretation that where Congress knows about something, but decline to mention it, they must have not intended to address it.

Close, but not quite. First off, there is no such cannon of construction as the one you claim. Second, if you're going to claim that there's a particular cannon of construction that applies, you should refer to it.


"Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions - it does not . . . hide elephants in mouseholes." Whitman v. American Trucking.
"Congress has not amended the statute to correct our construction, nor have any such amendments even
been proposed, and we therefore may assume that our interpretation was correct." Johnson v. Transportation Agency
Contrary to your suggestion, congressional silence on a fundamental issue - such as where Congress is silent on a major exception to a fundamental right - implying no direction to depart from historical jurisprudence is absolutely a canon of construction.

The closest cannon of construction that could apply to your argument is "Expressio unius est exclusio alterius" which means that the express statement of one or more exceptions implies the exclusion of any other exceptions. The 14th Amendment doesn't list any exceptions, so that cannon of construction would not apply.

Yes, which is why I'm not sure you brought up that strawman. I agree though, it would not apply. Rather, I'd point to what has been termed the "Clear statement rule," which requires that, if Congress wishes to achieve a particular result inconsistent with the Court's view of legal traditions, such as not applying substantive due process analysis to some fundamental right, Congress must state such an intent with unmistakeable clarity. Putting it "neon lights" if you will.

Now, you suggest in your post above that the clear statement rule would instead imply that the 14th amendment contains exceptions for marriage and sodomy! Where's the clear statement? The silence of Congress? Isn't that the exact opposite of the rule?

Your reading of the 14th to be similar in scope and nature to the 13th is inappropriate. One is an explicit abolition of a practice, while the other is a protection of rights. To try to state that because the 13th is explicit, therefore the 14th must be is to ignore both the text and context of each amendment.

What's worse is that the cannon of construction you made up wouldn't even be your best argument if it actually existed.

Again, fighting a strawman may impress some - see, e.g. Wisewerds - but it really won't fool anyone. Although, if you think Congress' silence implies some explicit exception, then maybe you believe my silence regarding your alleged canon of construction was also some explicit naming of it. In which case, I'll be frank - the words you're attempting to put in my mouth came from you, not me, so don't try to teach me about why they're wrong.

If you were paying attention, you would have noted that I already stated that I disagree with Scalia. Given that I disagree with him, you should be able to infer that I know and understand the arguments against his position. Your attempts to attack his position are poor at best. Your belief that they are in fact, my position, is also mistaken.

Again, I have no idea what you're talking about. I've never stated that you agree with Scalia. Perhaps you have me confused with some voice in your head?
Your fevered imagination has built up this strawman position that you've ascribed to me which you so thoroughly disagree with... and yet you've given it a B-? Did you go to Yale or something?

As for my arguments against Scalia's position, I think I've clearly supported them with logic and citation, rather than strawmen and bluster. You, however, have not supported your arguments that his position is not inconsistent. Hence, I could not even offer a grade... you haven't yet made an argument worthy of one.
If you'd like to actually discuss my position and Scalia's position and have a reasonable argument to provide I suggest:
- actual quotations. You clearly know how to copy and paste, so uncited references to "the cannon of construction you made up" ring hollow.
- an attempt to stay on topic, rather than suggesting other unrelated arguments. We're not discussing the constitutionality of laws against sodomy; we're discussing statutory interpretation of the due process clause of the 14th, and whether substantive due process analysis applies to all rights or whether there are exceptions based on typical laws at the time. The essential argument is whether the 14th must be interpreted based on laws in existence in the 1860s, or whether it may be interpreted based on the traditions and conscience of the people, as the 5th is.
Diverting into commentary about Kennedy's argument or how smart he is may be amusing, but are irrelevant.
- an attempt to actually provide arguments, rather than grades. A B- may be amusing snark, but it's certainly not a conclusion supported by logic.

I'm happy to discuss the topic further with you, if you'd like to actually discuss the topic for a change.
 
2012-10-05 06:39:18 PM  

Talondel: Given the interpretation above, the 2nd Amendment would not apply to things that an individual person could not carry and use on their own. So it would not apply to mortars, missiles, nuclear weapons, or other weapons that would have been referred to at that time as 'ordinance' (or as it is now spelled, ordnance).


If we're discussing whether Scalia's interpretation in Heller is correct, then quoting Heller as a persuasive authority to support Scalia is... hilarious?
 
2012-10-05 06:44:36 PM  

wisewerds: Talondel: Just what is your position?


On which issue? Oh what the hell, I'm bored at work I'll tackle them all:

Sodomy laws:

Under the original (1868) meaning of the 14th Amendment's equal protection clause, the phrase "equal protection under the law" means exactly today what it did then. When a state enacts a law, it must do so in a way that makes the law equally applicable to everyone, and thus laws which treat one class of citizens one way, and another class another way, are subject to various levels of scrutiny. This applies to statutes which classify people based on the plain language of the statute (facial challenges) or to statutes which are facially neutral but discriminatory as applied (as applied challenges).

Thus, a sodomy law that outlaws oral and anal sex is Constitutional if in practice it is applied equally to all citizens. However, if it is applied only to homosexuals then in becomes subject to intermediate scrutiny because it is discrimination based on gender. Thus sodomy laws will only survive judicial review if the government can import to an 'important' government interest, and mere 'morality' issues will not suffice. (Note that under my view, if there was a significant public health risk that was posed only by homosexual activity, then there could be an important government interest.)

The practical effect is that sodomy laws are unconstitutional, because if you think straight people are going to let a ban on oral sex that actually applies to them get passed anywhere, you're crazy (everyone knows state legislators love hummers).

Note: This is *not* the logic that was used to strike down sodomy laws in the past. Instead those rulings appear to be based on the substantive due process clause and the fundamental right to privacy. (I say appear, because the language in Lawrence is notoriously unclear on the subject of exactly what standard is being applied based on what clause, the assumption of most legal scholars being that the language had to be left deliberately vague so that they could get a majority of the justices that wanted to strike the law down to sign on to a single opinion)

Gay marriage:

So far the argument has been that the Prop 8 ban is unconstitutional not because it discriminates based on 'gender' but because it doesn't even pass the rational basis test. That is, it doesn't stand up to rational basis review because it doesn't actually effect the rights of either same sex or different sex couples, because all it really does is assign one name to the right for different sex couples (marriage) and one name to same sex couples (civil unions).

I dislike this logic for a number of reasons. First, it implies that if Prop 8 had been *more* discriminatory, it might have been upheld. I don't think that's good for either policy reasons or for purposes of Constitutional interpretation (I seriously doubt that anyone intended the 14th Amendment to treat laws that were only *superficially* discriminatory more harshly than laws that were *actually* discriminatory).

It makes more sense to view the law as discriminating on the basis of gender and then applying the same intermediate scrutiny test as above.

Alternately, you can say there is a fundamental right to choose who you will marry, and that right is protected by the substantive due process clause. In that case, the law is subject to strict scrutiny and would be struck down. Some people have a problem with this because the same logic could be applied to consensual incestuous marriages. To that I say: So what? If two consenting brothers and sisters want to marry, let them.

This 'problem' does not arise if you deal with it under the equal protection clause, which is one reason to prefer that approach. However, there is the problem of precedents that clearly state the gender preference isn't a protected class, and those cases would have to be overturned.

So to sum up, on same sex marriage there are at least three ways to find Prop 8 (and Arizona's Prop 200) unconstitutional. I prefer the intermediate scrutiny approach under the equal protection clause, but it's not the most likely outcome.

Ideally I would want the government out of defining 'marriage' except as it applies to legal concepts like property and testimony. There are two components to marriage, the religious component that deals with your vows to yourself, your spouse, and your God(s), and the legal component that deals with how the law treats your property and provides some evidentiary exceptions. Let the states deal with the legal issues and let the churches deal with the definition of marriage they want to apply to their followers. Keep the states out of that issue on separation of church and states grounds (policy grounds, not actual constitutional grounds, I don't think the free exercise or establishment clause are actually good arguments for blocking same sex marriage laws based on existing precedent).

Abortion:

Roe v. Wade and Casey v. Planned Parenthood were wrongly decided and should be overturned. While there is a fundamental right to privacy, saying that it applies to a medical procedure like abortion makes little sense. States regulate similar (but less controversial) procedures all the time and the 'right to privacy' suddenly disappears when the procedure being regulated is one involving organ sales, euthanasia, mandatory immunizations, mercury fillings, or any number of other medical decisions that are banned, required, or regulated by the states. If you can tell me why the right to privacy applies to abortion by not to my decision to end my own life, please feel free (Rehnquist tried, but I found his argument ultimately uncompelling).

A federal law should be passed making it legal for people to travel interstate to obtain any medical procedure which is legal in another state (which would be justified under the interstate commerce clause or the P or I clause of the 14th along with section 5 of the 14t, and would preempt state laws that try to make going out of state to obtain an abortion illegal) and other than that, the federal government should get the hell out of the abortion debate altogether.

People in these threads have been complaining about how selectively Scalia applies originalism, but they're willfully blind to how the liberal wing of the court selectively applies the 'right to privacy'. 

Before anyone responds. Please keep in mind that as I stated earlier, I am as 'pro abortion' as they get. But the Constitution doesn't protect my right to an abortion (or rather, my wife's) any more than it protects my right to sell my kidney to a person who needs it.
 
2012-10-05 07:09:55 PM  

Talondel: Note: This is *not* the logic that was used to strike down sodomy laws in the past. Instead those rulings appear to be based on the substantive due process clause and the fundamental right to privacy. (I say appear, because the language in Lawrence is notoriously unclear on the subject of exactly what standard is being applied based on what clause, the assumption of most legal scholars being that the language had to be left deliberately vague so that they could get a majority of the justices that wanted to strike the law down to sign on to a single opinion)


FTFR: Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause.

That doesn't sound vague to me.
 
2012-10-05 07:12:21 PM  

Talondel: Before anyone responds. Please keep in mind that as I stated earlier, I am as 'pro abortion' as they get. But the Constitution doesn't protect my right to an abortion (or rather, my wife's) any more than it protects my right to sell my kidney to a person who needs it.


Could a state outlaw surgical reconstruction of a harelip? Prophylactic mastectomy? Heart transplants? Administering medical assistance to anyone who had (or was reasonably suspected to have) ingested illegal drugs?

I'm asking seriously. Can a state outlaw what is now a legal medical procedure (and all of the above are not direct health issues, except helping Nikki Sixx - which could be argued as "docs' time is more important than helping ODing junkies. Get off the junk, hippie") the same way they did with abortion?

I mean, at some point, a state had to have written the law, so before that date, abortion would have been legal. What current Constitutional legal "boundaries" are there around medical science? Are there actual rules applied to laws concerning medicine, or is it just case-by-case?
 
2012-10-05 07:15:32 PM  
I'm not sure what inventing your own reality has to do with any of this. None of these are Federal issues. 'Easy'
 
2012-10-05 07:25:30 PM  

Theaetetus: Yes, which is why I'm not sure you brought up that strawman. I agree though, it would not apply. Rather, I'd point to what has been termed the "Clear statement rule," which requires that, if Congress wishes to achieve a particular result inconsistent with the Court's view of legal traditions, such as not applying substantive due process analysis to some fundamental right, Congress must state such an intent with unmistakeable clarity. Putting it "neon lights" if you will.


I already explained why, if you accept Scalia's proposition that all states banned sodomy in 1868, the Clear Statement Rule supports his argument, not yours. Go back and read. The clear statement rule applies when an act would lead to a major shift in policy. If the 14th Amendment was meant to legalize sodomy, that would be a major shift in policy, and it would need to be explicitly stated. By contrast, keeping sodomy illegal would not be a clear shift in policy (it's already illegal every where) so the Clear Statement Rule would not apply.

Theaetetus: Again, fighting a strawman may impress some - see, e.g. Wisewerds - but it really won't fool anyone. Although, if you think Congress' silence implies some explicit exception, then maybe you believe my silence regarding your alleged canon of construction was also some explicit naming of it. In which case, I'll be frank - the words you're attempting to put in my mouth came from you, not me, so don't try to teach me about why they're wrong.


I'm not making up a strawman. A strawman is when I assign to you an argument you didn't make and then attack it. You weren't explicit which cannon of construction you were using, so I addressed both, just in case you meant one or the other. I then pointed out the argument that you *should* have made. I don't claim it's the argument you *are* making, I'm simply pointing out that it's a better argument than the one you are using (the Clear Statement Rule) for the reasons I already laid out. Again, if you don't agree with me, that's fine. But I've got the guy who actually wrote the concurrence in Lawrence v. Texas on my side, and on your side you have . . . no one. (please don't bother to make an erroneous attempt to discredit this point as an appeal to authority, this is an appeal to authority, but a perfectly legitimate one, because Kennedy is in fact an authority on the subject and his opinion actually matters).

What you don't seem to grasp is that the cannon of construction that *you* say applies ("Clear statement rule") is actually the rule that SCALIA is using to get his result. You're agreeing with him about whan cannon of construction applies, but you're both misapplying it, for the reasons already explained.

Theaetetus: I've never stated that you agree with Scalia


You made a post that attacked Scalia's arguments, then said that I had been 'owned'. I'm not even going to bother explaining this to you. You won't accept it no matter what I say, and it's going to be painfully obvious to any third party who actually bothers to read it.

Theaetetus: see, e.g. Wisewerds


Ah, it's not just him! Don't forget the three people from the last thread that actually agreed with me also. So far the number agreeing with me (and posting) numbers 4 (5 if you count Thats_Not_My_Baby) and so far only you and the guy who couldn't understand the difference between the 5th and 14th Amendment who don't. I'm winning! I'm WINNING! SUCK MY BALLS!

Theaetetus: If we're discussing whether Scalia's interpretation in Heller is correct, then quoting Heller as a persuasive authority to support Scalia is... hilarious?


Good god, but you're obtuse. In the discussion of Scalia, it was said "By his own arguments the 2nd amendment only pertains to antiquated black powder rifles." But that's not Scalia's argument. So I quote Scalia's argument to demonstrate what his argument actually is, rather than what the various morons in this thread imagine it to be (presumably because they are either too lazy or too stupid to read Scalia's actual argument for themselves). You see, what *they* did was create a straw man. They ascribed to Scalia an argument they *imagined* he would make. I correctly them by quoting the relevant portions of his actual argument, which explains quite clearly why the 2nd Amendment doesn't apply solely to "antiquated black powder rifles"

If you want to attack me for over quoting the previous poster, such that it wasn't clear what part of their post I was addressing, I will concede that I could have been more selective in quoting them so that it was more clear.

In case that didn't make it clear, no I'm not particularly interested in debating this with you further, but if you really want to my email is in my profile.
 
2012-10-05 07:41:14 PM  
Well, if his argument is that sodomy laws had been on the books for hundreds of years then I hope to god the supreme court never has to rule on a slavery case.

Hypnozombie
/Good gawd Biden was right
//And they're not even hiding it anymore
 
2012-10-05 07:44:38 PM  

DoctorCal: That doesn't sound vague to me.


Eh, on this point you may just have to trust me when I say that the holding in Lawrence is far from clear. It's difficult to explain why Lawrence vexes legal scholars without more understanding of the law surrounding the area than I can easily convey in the time I have. To give a simplified version:

The court certainly does claim that it's ruling is based on the due process clause. But that's problematic because prior to Lawrence there were only two tests under substantive due process, rational basis for non-fundamental rights, and strict scrutiny for fundamental rights. Lawrence manages to avoid ever stating what test it is applying, but it doesn't look like either of those. Instead, the test ends up looking more intermediate scrutiny, but that's the test that would normally be applied to gender based discrimination under the equal protection clause (which I argue is what they should have done anyway). If you don't believe me, you might believe Wikipedia, which has some discussion of the issue. Skip down to the section on "level of scrutiny."

Dr Dreidel: I mean, at some point, a state had to have written the law, so before that date, abortion would have been legal. What current Constitutional legal "boundaries" are there around medical science? Are there actual rules applied to laws concerning medicine, or is it just case-by-case?


Well, the 'right to privacy' (which can perhaps be better thought of as 'the right to personal autonomy') has been held to apply to issues relating to procreation, birth control, and the right to refuse medical treatment. However, it's not been held to apply to the right to euthanasia, or to the right to select the gender of your child. At least in my mind, it's hard to see how 'personal autonomy' applies to the right to choose an abortion, but not to the right to die or to the right to make other decisions relating to child birth such as gender selection. So the short answer is that there are many medical procedures that are banned by either the states or the federal government, many of which seem to impact the 'right to autonomy' at least as much as abortion, but for some reason abortion is all that is protected by the Constitution, at least according to the Supreme Court.
 
2012-10-05 07:49:49 PM  
I Love to Watch a Debate Between the basement dwelling loons of DailyCrotch in a live debate with Thomas Jefferson, John Adams and George Washington. I really would. I'd even bring the mop and bucket to sponge off the greasy spots from the Loony Left's Meltdown.

Just so long as the debate wasn't held in Denver. Leftists can't handle being that high.
 
2012-10-05 07:53:19 PM  

Talondel: Eh, on this point you may just have to trust me when I say that the holding in Lawrence is far from clear. It's difficult to explain why Lawrence vexes legal scholars without more understanding of the law surrounding the area than I can easily convey in the time I have. To give a simplified version:

The court certainly does claim that it's ruling is based on the due process clause. But that's problematic because prior to Lawrence there were only two tests under substantive due process, rational basis for non-fundamental rights, and strict scrutiny for fundamental rights. Lawrence manages to avoid ever stating what test it is applying, but it doesn't look like either of those. Instead, the test ends up looking more intermediate scrutiny, but that's the test that would normally be applied to gender based discrimination under the equal protection clause (which I argue is what they should have done anyway). If you don't believe me, you might believe Wikipedia, which has some discussion of the issue. Skip down to the section on "level of scrutiny."


Thanks for the clarification.
 
2012-10-05 08:04:26 PM  

Talondel: Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35-36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.


But this is what Scalia is advocating -only considering what the framers had in mind when they wrote the Constitution. So I guess you are against Scalia, in all instances of his interpretation.
 
2012-10-05 08:19:13 PM  

Talondel: Accidentally added the comment before I finished:

Given the interpretation above, the 2nd Amendment would not apply to things that an individual person could not carry and use on their own. So it would not apply to mortars, missiles, nuclear weapons, or other weapons that would have been referred to at that time as 'ordinance' (or as it is now spelled, ordnance).


Again, that wouldn't necessarily eliminate a suit case nuke. Anyone could carry and use that. That wouldn't eliminate an aerosol can full of biological arms. Held in the hand and "shot" at the enemy?
 
2012-10-05 10:11:37 PM  

Gecko Gingrich: Homosexual sodomy? Come on. For 200 years, it was criminal in every state," Scalia said at the American Enterprise Institute.

I know that I'm perhaps being a bit of a pedant, but even if one says that the "states" were created in 1776, there were 18 states that had removed sodomy laws by 1976, some as early as 1962, though some quickly reinstated them.


It's amazing how people like Scalia seek to limit the rights and freedoms of citizens of the United States because of archaic nonsense and baseless fear and hate.
 
2012-10-05 10:15:59 PM  
Also love how they have no problem with guys farking women in the ass, but a guy farking a guy in the ass, "OH MY GOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO~D!".
 
2012-10-05 10:27:25 PM  
Fourteenth Amendment 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's the text.

Is Scalia the self-proclaimed "textualist" saying Americans who happen to be gay are not citizens or not persons

fark Scalia.
 
2012-10-05 10:42:30 PM  

tekmo: Fourteenth Amendment 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's the text.

Is Scalia the self-proclaimed "textualist" saying Americans who happen to be gay are not citizens or not persons? 

fark Scalia.


Certainly seems like it. Of course, the easiest way to be evil towards someone is to see them as not human.
 
2012-10-05 10:53:34 PM  

Because People in power are Stupid: Talondel: Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35-36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

But this is what Scalia is advocating -only considering what the framers had in mind when they wrote the Constitution. So I guess you are against Scalia, in all instances of his interpretation.


Do you realize how farking stupid you sound? That section you just quoted IS JUSTICE SCALIA. It is his actual written explanation of the second amendment, his actual opinion of what the second amendment means, from an actual supreme court case (DC v Heller). As opposed to the position that your and your ill-informed ilk think he would have.

But why bother to read what the man has actually said, when we have you and your brilliant farking speculation to go on instead?
 
2012-10-05 11:07:50 PM  

Keizer_Ghidorah: tekmo: Fourteenth Amendment 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's the text.

Is Scalia the self-proclaimed "textualist" saying Americans who happen to be gay are not citizens or not persons? 

fark Scalia.

Certainly seems like it. Of course, the easiest way to be evil towards someone is to see them as not human.


Again, this is incorrect. His argument is not that the 14th amendment doesn't apply to homosexuals because they are not people or are not citizens. His argument is that the 14th amendment was not intended by the people who wrote it to protect homosexuals from regulation by the states. If you are going to attack his position, the first step is to actually understand his position. In other words, that they aren't a 'protected class' within the meaning of 14th equal protection clause, and that same sex marriage isn't a fundamental right within the meaning of the due process clause. I disagree with those positions, but at least they more accurately describe his positions. See above.
 
2012-10-05 11:14:35 PM  
Anyone who subscribes to the 'living document' idea of interpreting the Constitution is an idiot. That is all. That said, there are many who claim to not subscribe to that theorey, but adhere to the original intent..until it gets to their pet peeve issues, then it is hypocrite time.

The Federal Defense of Marriage Act: unconstitutional. It is a state matter. If a state oks gay marriage, then its ok. Done deal. Any Federal law restricting abortion (or enabling it): unconstitutional, state matter. Many 'bedrock' governemtn agencies shouldnt exist. I'd support amending the constitution to allow them to exist; I think there are legitimate reasons for the EPA, OSHA, EEOC, Social Security and many other agencies and programs to exist, and going off the gold standard was not a horrific idea (even though print money as fast as the presses run isn't bright)..we just need to make that constitutional.
 
2012-10-05 11:37:30 PM  

Talondel: Again, this is incorrect. His argument is not that the 14th amendment doesn't apply to homosexuals because they are not people or are not citizens. His argument is that the 14th amendment was not intended by the people who wrote it to protect homosexuals from regulation by the states.


Aw, horseshiat. If the authors intended the amendment to apply exclusively to negros or redheads or lefties, they would have said so. The authors deliberately chose the very broad terms "citizen" and "person."

The amendment says what it means, and it means what it says.

/Yes, I know Scalia believes the only Americans who possess fundamental rights are white males -- and it's merely a remarkable coincidence that's his own personal demographic group.
//He's a bigot and a lunatic and he can't die soon enough, the insipid, self-satisfied motherfarker.
 
2012-10-05 11:43:10 PM  

Talondel: Because People in power are Stupid: Talondel: Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35-36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

But this is what Scalia is advocating -only considering what the framers had in mind when they wrote the Constitution. So I guess you are against Scalia, in all instances of his interpretation.

Do you realize how farking stupid you sound? That section you just quoted IS JUSTICE SCALIA. It is his actual written explanation of the second amendment, his actual opinion of what the second amendment means, from an actual supreme court case (DC v Heller). As opposed to the position that your and your ill-informed ilk think he would have.

But why bother to read what the man has actually said, when we have you and your brilliant farking speculation to go on instead?


So either he made that statement or B) It's taken out of context or C) it doesn't matter because whatever I say is wrong.

It's unclear what his point is other than you support it.
 
2012-10-06 12:36:25 AM  

Talondel: Keizer_Ghidorah: tekmo: Fourteenth Amendment 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's the text.

Is Scalia the self-proclaimed "textualist" saying Americans who happen to be gay are not citizens or not persons? 

fark Scalia.

Certainly seems like it. Of course, the easiest way to be evil towards someone is to see them as not human.

Again, this is incorrect. His argument is not that the 14th amendment doesn't apply to homosexuals because they are not people or are not citizens. His argument is that the 14th amendment was not intended by the people who wrote it to protect homosexuals from regulation by the states. If you are going to attack his position, the first step is to actually understand his position. In other words, that they aren't a 'protected class' within the meaning of 14th equal protection clause, and that same sex marriage isn't a fundamental right within the meaning of the due process clause. I disagree with those positions, but at least they more accurately describe his positions. See above.


fark that noise. They're still American citizens and deserve all the rights and freedoms other American citizens have. His interpretation shows what a narrow-minded asshole he is.
 
2012-10-06 01:35:26 AM  

Aarontology: kronicfeld: What "special rights" do "corporations" have that individuals do not?

They're taxed differently for starters. They can also limit their own personal responsibility for the things they do, something you or I cannot. They have the same rights as individuals without the same responsibilities or obligations.


As the sayings go, I'll believe that corporations are people when Texas executes one.
 
2012-10-06 01:38:07 AM  

Weaver95: WorldCitizen: Because People in power are Stupid: By his own arguments the 2nd amendment only pertains to antiquated black powder rifles.

Well, it says "arms" not guns. So maybe some cannons as well.

Of course, if you took the Constitution very literally, it does just say arms. Nuclear arms? Chemical arms? Biological arms? And I do remember at least one Farker arguing that in fact, based on the 2nd Amendment, Americans have the right to bear nuclear arms.

[blogs.ocweekly.com image 400x300]


Scalia. Scalia never changes.
 
2012-10-06 02:17:09 AM  

tekmo: Aw, horseshiat. If the authors intended the amendment to apply exclusively to negros or redheads or lefties, they would have said so. The authors deliberately chose the very broad terms "citizen" and "person."


Yes, but they also chose the words "due process" "equal protection" and "privileges and immunities" which had specific meanings of their own. As I said, Scalia doesn't think that the 14th Amendment doesn't apply because of limited definitions of 'citizen' or 'person' it's because of the limited definitions of those other phrases. The two that should most clearly apply to gay rights are "equal protection" and "privileges and immunities." Unfortunately, those two issues were decided well before Scalia was on the Court. The P & I clause was all but written out of the 14th Amendment in the Slaughterhouse Cases 83 U.S. 36 (1873). The Court upheld a decision that sexual orientation was not a protected class in Baker v. Nelson 409 U.S. 810 (1972). Scalia had nothing to do with those decisions.

tekmo: Yes, I know Scalia believes the only Americans who possess fundamental rights are white males


Again, as I already said, it has nothing to do with his belief about *who* has fundamental rights, and everything to do with what he (mistakenly) believes regarding what the people who passed the 14th Amendment would have said about gay rights.

Because People in power are Stupid: whatever I say is wrong.


Yes, the answer is C. Everything you've said is wrong. Glad we can agree on that much.

Keizer_Ghidorah: fark that noise. They're still American citizens and deserve all the rights and freedoms other American citizens have. His interpretation shows what a narrow-minded asshole he is.


See above.
 
2012-10-06 11:56:59 AM  

Talondel: I then pointed out the argument that you *should* have made. I don't claim it's the argument you *are* making, I'm simply pointing out that it's a better argument than the one you are using (the Clear Statement Rule) for the reasons I already laid out. Again, if you don't agree with me, that's fine. But I've got the guy who actually wrote the concurrence in Lawrence v. Texas on my side, and on your side you have . . . no one. (please don't bother to make an erroneous attempt to discredit this point as an appeal to authority, this is an appeal to authority, but a perfectly legitimate one, because Kennedy is in fact an authority on the subject and his opinion actually matters).


Talondel, I'm going to assume that you're actually debating in good faith (unusual for a Fark thread), and suggest, based on this and your prior post, that you think I was actually arguing about the constitutionality of anti-sodomy laws. It's the only way your suggestion that Kennedy's argument was better would make sense.
As I said before, that's not what I was arguing about. What I was arguing had specifically to do with how substantive due process is applied under the fourteenth amendment and whether the drafters intended for the doctrine to be applied in the same way as it was applied to the fifth amendment. Kennedy never addressed that. Your suggestion that his argument in Lawrence would be more appropriate indicates that you didn't understand what I was talking about.
So, clearer now?
 
2012-10-06 11:58:57 AM  

Talondel: Yes, but they also chose the words "due process" "equal protection" and "privileges and immunities" which had specific meanings of their own. As I said, Scalia doesn't think that the 14th Amendment doesn't apply because of limited definitions of 'citizen' or 'person' it's because of the limited definitions of those other phrases. The two that should most clearly apply to gay rights are "equal protection" and "privileges and immunities." Unfortunately, those two issues were decided well before Scalia was on the Court. The P & I clause was all but written out of the 14th Amendment in the Slaughterhouse Cases 83 U.S. 36 (1873). The Court upheld a decision that sexual orientation was not a protected class in Baker v. Nelson 409 U.S. 810 (1972). Scalia had nothing to do with those decisions.


It's clear that they speech you are using is an illegal "clear and present danger" as surmised by Schenck v. United States. Because the United States Supreme Court never modifies or changes past decisions, you need to turn yourself into the local draft board for sentencing.

(My misstakes in these statements are are as clear as yours if not as deliberately deceitful.)
 
2012-10-06 08:43:19 PM  

WorldCitizen: Well, at least we know how he would have ruled on Dred Scott (for) and Brown (against).


His main arrogance is his presumption that he can know the minds of the Framers. He cannot, and none of us can. They are far too removed from our present reality, and what we do know of their thoughts, from what they took the time to write down clearly about it, suggests strongly that they'd find it perfectly asinine to keep things the same for so long, without robust debate and gradual modification. Jefferson himself proposed a constitutional congress every twenty years, whether or not anyone demanded it, on the assumption that no standing body of law should be so rigid that it can't withstand close scrutiny once every generation.

But that's actually all moot anyway, since Scalia's just full of shiat when he says things like that. He's a very intelligent man, and has many likeable qualities. Actual integrity is not among them, I'm very sad to say, because if he was the honourable and deeply principled man he pretends to be, who truly embraced the spirit and intent of the Constitution as a living and evolving governing instrument of a young and dynamic nation, he could be a justice for the ages, instead of a the scheming opportunistic douchebag that future legal scholars are likely to find him to have been after he's gone.

He talks a good talk -- a brilliant talk, actually. If he really was this man, he'd be worthy of very high praise, whether you agree with him or not on any given point. But actually read his opinions, and you find see a quite different Scalia, a very clever man who somehow always manages to find a legal rationale -- no matter how tortuous -- that just happens to coincide with his petty personal biases.

This is in no small part because his personal philosophy actually elevates certain assumptions of absolute or divine law *above* the U.S. Constitution he so loves to fellate in front of the press. On his own time, he's a little more forthcoming about where he's really coming from:

[G]overnment-derives its moral authority from God...We are a religious people, whose institutions presuppose a Supreme Being.... All this, helps explain why our people are more inclined to understand, as St. Paul did, that government carries the sword as "the minister of God," to "execute wrath" upon the evildoer,
-- excerpt from address at University of Chicago Divinity School, 2002 (source)

If he believes even part of what he said above, then how can we ask him to hold supreme our laws of Caesar when considering the disputes brought before the high court, and set aside his personal views long enough to do that with the integrity and disinterest we surely demand of our top justices? There are those who sincerely believe that the 'laws of man' can never legitimately conflict with what they interpret as the 'laws of God'. That's fine, but we do not ask -- and in theory to not allow -- such persons to sit on the high court charged exclusively with interpreting our founding document. J. Scalia appears to feel that he can prudently balance these two conflicting charges. I would call that arrogance of the highest degree, and a wilful betrayal of his oath to "support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same[.]" 

/just my opinion, possibly dissenting
 
2012-10-06 09:18:32 PM  

bentleypm: Um, what would it take to get term limits for these jacktards? A constitutional amendment?


Yes.

Supreme Court Justices can be impeached, and have been fourteen times in our history. (Three others resigned in anticipation of it, bringing the effective total to seventeen.) Generally, this would have to meet the same standard ("Treason, Bribery, or other High Crimes and Misdemeanours" -- Art. II, Sctn. 4) of any other congressional impeachment of a high government official. And an impeachment by no means guarantees removal, as the trial is not conducted by the same house that indicts. It's a materially costly and politically stressful process, appropriately reserved only for the worst offences by the worst offenders. (Clinton's impeachment for casual diddling notwithstanding, I have to say. And if lying to Congress is impeachable, then we should line up everyone who's ever testified to them.) We don't want to be impeaching people just because we don't like them, or disagree with them; that would betray the entire concept and purpose of our system of checks and balances. But yes, we do have a remedy available if some Justice should prove legitimately crazy or evil.

I personally do not support term limits for Congress or the federal justices, for reasons that would be a little lengthy, complex, and possibly not relevant to outline here and now, but that I've pondered for years now (and still remain open to consideration on). But to answer your question, yes, term limits for *any* federal justices would indeed require a constitutional amendment.
 
2012-10-06 09:24:44 PM  

Brother_Mouzone: I wish he would die already. and in the next month. that's a good question. lets say Romney wins, and a justice dies between November and the swearing in, who names the new justice?


The president.
 
2012-10-06 10:08:44 PM  

mongbiohazard: "It is very difficult to adopt a constitutional amendment," Scalia said. He once calculated that less than 2 percent of the U.S. population, residing in the 13 least populous states, could stop an amendment, he said.


Running the numbers rather crudely, I come up with 4.44%. I only selected the top thirteen (50-37), added the populations (Census est. 1 July 2011), and divided by the total (of all States only, disregarding non-States). My method does not take into account all those who cannot vote, meaning that my population figures are too high to be rational, likely by a factor of two. On the other hand, I doubt it's much different in aggregate across all States, so I figure my crude estimate probably is pretty close. (That is, if you accounted for all non-voters in all States, you should come up with the same proportions, more or less.) To be entirely fair, since these State voters get to decide for *all* U.S. citizens, not just those living in States where they can elect the State legislators who actually vote on Amendments, I also ran the numbers against the *total* U.S. population (Census est. 1 April 2010) -- and came up with the same. There just aren't enough people living in non-State jurisdictions to shift the numbers. However, it's entirely valid to point out that the actual voting population of those thirteen smallest states really do get to decide for *everyone* else, and I figure that's where he's getting that 2% figure.

His point is valid, regardless: A very small number of citizens do have veto power over any proposed U.S. constitutional amendment, and that's very much worth discussing.

But what was it like in 1789, when this law was drafted, and when it would have seemed most relevant to those who drafted it? Surely they had similar figures available to them, and were smart enough to run those numbers to see what the implications were.

I did this using Census 1790 figures. At that time, there were seventeen (17) States, so only thirteen (13) were needed to ratify any amendment. That means that any five (5) could veto. Running the same model, I find that in 1790, those five smallest States comprised some 8.1% of all U.S. residents. If we presume again that actual voter proportions average out, and if we also assume that only about half of all citizens actually get to vote, we get 4%. If we then also note that more than half the people who can vote now could not then, we get a figure somewhere pretty close to Scalia's, perhaps even lower.

So assuming I haven't been a complete ass about how I've arrived at this figures, I have to wonder how this self-appointed constitutional constructionist finds it objectionable that a provision of law which appears to have been directly considered, measured, and evaluated by the Framers themselves would offend his sensibilities, where it seems to do pretty much the same today.

No further questions.
 
2012-10-06 10:16:31 PM  

Gecko Gingrich: Homosexual sodomy? Come on. For 200 years, it was criminal in every state," Scalia said at the American Enterprise Institute.

I know that I'm perhaps being a bit of a pedant, but even if one says that the "states" were created in 1776, there were 18 states that had removed sodomy laws by 1976, some as early as 1962, though some quickly reinstated them.


Yeah, he's being a dick there alright, and he damn well knows better. This is not hyperbole, but an unambiguous assertion on his part. One that is factually and categorically false, and few people would know the actual facts better than a sitting U.S. Supreme Court Justice.

It's as rational as saying the same about antimiscegenation laws in 1966 (one year before Loving), while knowing that only thirteen states still had such laws. And it was equally disingenuous for Mitt Romney, in 2004, to insist on the enforcement of Massachusetts' craven 1913 backdoor antimiscegenation law, as a means to persecute gays in his state. The Supreme (legislative, not judicial) Court in that state enacted a quick repeal within two years, but it was douchy that anyone even thought to drag that evil, moth-eaten law out of storage for that purpose.

Scalia has part of a point, in that a clear majority of U.S. States currently have some form of DOMA in place, and DOMAs are unambiguously opposed to the full equality of gay citizens. But that's not the same as the unambiguous facts of what he actually said, and a man who parses others' words and has all the facts at his disposal has no excuse.
 
2012-10-06 10:46:48 PM  

Theaetetus: WorldCitizen: Things I believe in firmly regardless of whether or not the Constitution seems to support:

Right to free speech/thought.

Do you believe in an inalienable right to defame someone? If so, how is that consistent with:
Right to be free from physical or property harm


Where defamation or false claims can be demonstrated or reasonably argued to cause real harm to a person's physical or economic health, an actionable offense is committed. Merely hurting someone's feelings, not so. (Unless the mental or emotional impact be so great as to cause such harms.) But there is no bright line here, and that's why we have courts to decide.
 
2012-10-06 11:03:09 PM  

Theaetetus: Because People in power are Stupid: You also can't "bear" a nuclear weapon because it would be a little too heavy.

(a) what about a suitcase nuke?
(b) if that was a true limitation, what about cannons, which were certainly privately owned in the 18th century?


These are very interesting questions, and I'm personally fascinated with the entire Second Amendment debate because of questions like these. I think it's worthwhile for us to consider all possible interpretations of the law, and openly debate them at length. The Framers may indeed have had a very different concept of personal security than majority opinion seems to have now, and what sense we can make of it may give us very valuable insight into the paths we've followed and those we might have otherwise -- as well as how we might move forward.

I don't think the debate will be settled through this kind of exegisis, though, at least not alone. You and others have made very good arguments about what the law means, both in itself and in remote and modern contexts. Because this is part of our founding law, it's incumbent upon us to try to make the best sense of it we can -- or, failing that, craft a replacement through further amendment that we can better agree on.

I'm personally torn on it, because I can see very good arguments on both sides, and I don't want to make assumptions based merely on what seems to "make sense" to me, or what I may believe the Founders intended, in or out of context. I don't want citizens shooting each other. But I consider that Heinlein may have been right when he said that "An armed society is a polite society." And I consider Michael Moore's examination of the causes of America's staggering gun death numbers, concluding that mere existence and possession of guns didn't adequately explain it. Rather, he concluded, it's our cultural impetus to try to solve problems by shooting each other that's mainly to blame.

So perhaps a rational right-now view would be that the Second Amendment does indeed mean what the NRA says, but opponents are also right in saying that the America of today is very different from then. Guns are a lot different, but so are people, and both those factors are entirely relevant in consideration of the real impact of any law on the public weal and the welfare of the nation as a whole. If arming everyone would lead to a nationwide Wild West shootout, then it's very hard to defend that on principle alone. But if arming everyone would lead to everyone getting used to it and chilling out, then the opposite would be arguable.

All this makes it extremely hard to know how to approach this, as it's become quite complex. But parsing the language of the law is certainly a critical component of sorting it all out, so I wish you all well, for all our sakes.
 
2012-10-06 11:11:51 PM  

wisewerds: Either you believe the constitution is a social contract, or you believe it's a license for an unelected elite to impose their vision of a just society on the rest of us.

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. It is consistent with the long history of Anglo-American jurisprudence. It is based on an objective standard.

If, as most modern day liberals do, you believe the constitution is a license for an unelected elite to impose their vision of society on the rest of us, you have some problems.

First, that position has no principle behind it. If that unelected elite decide that it's ok to take your guns away, or to allow the police to search your house without a warrant, or to prohibit internet news sites, or that the people who post on such sites should be rounded up, put in concentration camps, and shot, what right do you have to complain?

Second, if you believe that the constitution is a social contract, what obliges you (other than the fear of the application of force) to pay the slightest attention to the pronouncements of the elite? The answer is quite simple: none.


I have to say, as a liberal, that I find your argument both cogent and compelling. Much to ponder, thanks! I would only suggest that we all try to refrain from name-calling, because I think it only muddies the waters. 'Liberals' run a very broad gamut, and so do 'conservatives,' as well as Democrats, Republicans, Libertarians, and so on. I think we're all a little to ready to slap these terms on each other, when they really don't mean a whole lot in reality. I can line up six Democrats and get six different answers to the same question; I'm sure the same is true of any six Republicans. So let's all just take it easy, before throwing blanket accusations around. It bothers me enormously when fellow liberals say things like, "Republicans oppose abortion," because while that is a formal GOP plank, it does not describe all Republicans, and it's totally unfair to say. The same is true for claims that 'liberals' all want the Constitution to work in a certain way. We don't; we argue all the time about it, and I think that's very healthy.
 
2012-10-06 11:24:11 PM  

Weaver95: 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.


I would extend this further -- as I have before -- to indict the People themselves. We elect Congress, and we're supposed to provide guidance, consent, and oversight. For the most part, we decline to do that. So it doesn't surprise me that they often don't work for the interests of the People, but instead for those who do bother to participate in the process, which right now is mostly lobbyists and activists. I hear all kinds of appeals to "spread the word" or whatever, but only rarely to pick up a damn pen and write your congress critter. So while I agree with you, I think the blame really falls to us.
 
2012-10-06 11:38:58 PM  

Theaetetus: 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.


Boom. Excellent argument. Someone finally cut through all the BS about this, to make it clear to everyone.
 
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