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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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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 08:29:58 AM  
So it doesn't prevent restrictions on abortion.
So it doesn't prevent restrictions on capital punishment.
So it doesn't prevent restrictions on homosexual sodomy. oops
So it doesn't prevent restrictions on restrictions on homosexual sodomy.

That's a pretty solid case there judge.Seems legit.
 
2012-10-05 08:30:24 AM  
Well, at least we know how he would have ruled on Dred Scott (for) and Brown (against).
 
2012-10-05 08:31:47 AM  

edmo: So it doesn't prevent restrictions on abortion.
So it doesn't prevent restrictions on capital punishment.
So it doesn't prevent restrictions on homosexual sodomy. oops
So it doesn't prevent restrictions on restrictions on homosexual sodomy.

That's a pretty solid case there judge.Seems legit.


Well I screwed that up. That's it,no more bourbon flakes.
 
2012-10-05 08:32:46 AM  

edmo: So it doesn't prevent restrictions on abortion.
So it doesn't prevent restrictions on capital punishment.
So it doesn't prevent restrictions on homosexual sodomy. oops
So it doesn't prevent restrictions on restrictions on homosexual sodomy.

That's a pretty solid case there judge.Seems legit.


He's one of the people those Founders who were against a bill of rights feared. They feared some idiots would come along some day and say if a right wasn't included in the list, the idiots would think the Constitution didn't grant that right if it otherwise didn't list it has prohibited. Well, Scalia proved them right.
 
2012-10-05 08:47:36 AM  
The scary part about this is that Scalia's vote is effectively doubled, because all Clarence Thomas does during arguments is ask "How'd Scalia vote?", vote that way, then go back to reading his copy of Juggs.
 
2012-10-05 08:51:36 AM  

WorldCitizen: edmo: So it doesn't prevent restrictions on abortion.
So it doesn't prevent restrictions on capital punishment.
So it doesn't prevent restrictions on homosexual sodomy. oops
So it doesn't prevent restrictions on restrictions on homosexual sodomy.

That's a pretty solid case there judge.Seems legit.

He's one of the people those Founders who were against a bill of rights feared. They feared some idiots would come along some day and say if a right wasn't included in the list, the idiots would think the Constitution didn't grant that right if it otherwise didn't list it has prohibited. Well, Scalia proved them right.


Not true.

Corporations don't have special rights in the Constitution, but that didn't stop Scalia from making some up. Now, if you're a real, flesh and blood person, Scalia thinks you only get the rights specifically granted in the bill of rights.

But legal entities? Sky's the limit.
 
2012-10-05 08:52:20 AM  
We need a Constitutional amendment ending lifetime appointment to the Supreme Court
 
2012-10-05 08:56:36 AM  

Aarontology: Corporations don't have special rights in the Constitution, but that didn't stop Scalia from making some up. Now, if you're a real, flesh and blood person, Scalia thinks you only get the rights specifically granted in the bill of rights.

But legal entities? Sky's the limit.


What "special rights" do "corporations" have that individuals do not?
 
2012-10-05 09:00:37 AM  

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.
 
2012-10-05 09:02:22 AM  

kronicfeld: Aarontology: Corporations don't have special rights in the Constitution, but that didn't stop Scalia from making some up. Now, if you're a real, flesh and blood person, Scalia thinks you only get the rights specifically granted in the bill of rights.

But legal entities? Sky's the limit.

What "special rights" do "corporations" have that individuals do not?


Broadly speaking, all the legal rights and privileges of a citizen and none of the liabilities and restrictions.
 
2012-10-05 09:03:11 AM  

kronicfeld: Aarontology: Corporations don't have special rights in the Constitution, but that didn't stop Scalia from making some up. Now, if you're a real, flesh and blood person, Scalia thinks you only get the rights specifically granted in the bill of rights.

But legal entities? Sky's the limit.

What "special rights" do "corporations" have that individuals do not?


Why is corporations in "quotes"?
 
2012-10-05 09:06:58 AM  

Tigger: Why is corporations in "quotes"?


Because there are more business entities than just "corporations."
 
2012-10-05 09:10:19 AM  

kronicfeld: Tigger: Why is corporations in "quotes"?

Because there are more business entities than just "corporations."


Maybe it's a "shorthand" to describe those different "business entities" since it's "easier" to do so when "discussing" these things.

It's like tal;king about "citizens" then getting pedantic about the various protected classes.
 
2012-10-05 09:12:26 AM  
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.
 
2012-10-05 09:20:38 AM  
I think his point is that the state's have rights to do those things. The issue is that I don't believe the states have the rights to put those type of restrictions on individual liberty. He's still supportive of government rights over individual liberty...either the fed or the states....in both cases he's wrong.
 
2012-10-05 09:26:52 AM  

kronicfeld: Tigger: Why is corporations in "quotes"?

Because there are more business entities than just "corporations."


An unintended conflation since the core of what we're talking about here has been termed "corporate personhood.
 
2012-10-05 09:31:51 AM  
Scalia is one of the guys for which I wish there existed a heaven and a St. Peter.
 
2012-10-05 09:43:12 AM  

Generation_D: Scalia is one of the guys for which I wish there existed a heaven and a St. Peter.


Wishing wasn't what the founding fathers wanted. You must be a corporation, how'd you get in here.
 
vpb [TotalFark]
2012-10-05 09:44:42 AM  

Generation_D: Scalia is one of the guys for which I wish there existed a heaven and a St. Peter.


Why? He would never see the former and only briefly meet the latter.
 
2012-10-05 09:50:10 AM  

vpb: Generation_D: Scalia is one of the guys for which I wish there existed a heaven and a St. Peter.

Why? He would never see the former and only briefly meet the latter.


I dunno. The image of St. Pete bopping Scalia on the head with a giant novelty squeaky gavel and knocking him to Hell would be pretty funny.
 
2012-10-05 10:29:13 AM  
"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.
 
2012-10-05 10:34:05 AM  

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.


Well, it was obviously the original intent of the Founders, so it would not be all that surprising.
 
2012-10-05 10:41:52 AM  

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.


he certainly seems to have an authoritarian mindset, and I tend to believe that most authoritarians are mentally ill. with Scalia though, the guy seems to be actively and almost gleefully malicious. I think he knows exactly what he's doing, and believes that it's honestly the best way for him to do his job. it would be easier if he was mentally ill or 'merely' a fanatic. you could almost dismiss his ideology at that point. But he really seems to have thought things through and honestly believes that his way is the only way to live. that's f*cking scary as hell.
 
2012-10-05 10:52:18 AM  
By his own arguments the 2nd amendment only pertains to antiquated black powder rifles.
 
2012-10-05 10:57:49 AM  

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


and cannabis would be legal. hey, half the gotdamn founding fathers grew hemp on their plantations.
 
2012-10-05 11:10:46 AM  

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.
 
2012-10-05 11:12:09 AM  
Scalia should only get 3/5ths of the vote of the other justices.
 
2012-10-05 11:14:38 AM  

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
 
2012-10-05 11:18:26 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]


www.superchefblog.com
 
2012-10-05 11:19:10 AM  
This is an actual quote from Scalia.

"Jack Bauer saved Los Angeles. ... He saved hundreds of thousands of lives," Judge Scalia said. Then, recalling Season 2, where the agent's rough interrogation tactics saved California from a terrorist nuke, the Supreme Court judge etched a line in the sand.
"Are you going to convict Jack Bauer?" Judge Scalia challenged his fellow judges. "Say that criminal law is against him? 'You have the right to a jury trial?' Is any jury going to convict Jack Bauer? I don't think so.
 
vpb [TotalFark]
2012-10-05 11:21:29 AM  

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


No he says anything that you can carry. It's a stupid argument because "bearing arms" meant serving in a military, but that's what he says it means. That's more of an NRA definition than something from the founding fathers.

It also means that the 2nd amendment allows you to have as much nerve gas as you can carry or a small nuclear bomb.
 
2012-10-05 11:25:33 AM  

vpb:

It also means that the 2nd amendment allows you to have as much nerve gas as you can carry or a small nuclear bomb.


if that were true, there would be a LOT of dead, burned out car wreckage at the end of damn near every on ramp along rt 81 in central Pennsylvania. learn to f*cking merge with traffic already, will you!? merge or BY FIRE BE PURGED!
 
2012-10-05 11:29:47 AM  
Pete and repeat?
 
2012-10-05 11:47:40 AM  

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.


I'd happily argue that.
 
2012-10-05 11:48:44 AM  
That's right. Gays should not be allowed to marry because there were sodomy laws at the time of the writing of the Constitution.

I wonder if gays could be allowed to OWN each other. There were plenty of pro-slavery laws at the time of the writing of the Constitution.
 
2012-10-05 11:49:16 AM  

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.


I think it's a reasonable argument. 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? That doesn't seem like a fair fight if they've got nukes, drones, chemical weapons, etc and all I have is a pistol.
 
2012-10-05 11:49:54 AM  

vpb: No he says anything that you can carry. It's a stupid argument because "bearing arms" meant serving in a military,


Actually, it's the opposite - because the people had the right to keep and bear arms, a standing military was unnecessary as the people could be mobilized if needed.

but that's what he says it means. That's more of an NRA definition than something from the founding fathers.

It also means that the 2nd amendment allows you to have as much nerve gas as you can carry or a small nuclear bomb.


Additionally, as noted above, arms included cannons, but I doubt you could find anyone who could pick one up without a winch.
 
2012-10-05 11:53:36 AM  
Yet another article of him openly declaring he decides verdicts prior to actually hearing cases, and nobody seems to care.
 
2012-10-05 11:53:45 AM  
It is very easy if you don't think the constitution is a living document which a lot of liberal activist judges do.
 
2012-10-05 11:54:28 AM  

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


When Posner said he did the same, everyone was happy. :P
 
2012-10-05 11:54:52 AM  
Some of these guys are waiting until a GOP president is elected to retire. Clarence Thomas is going to die on the supreme court.
 
2012-10-05 11:56:31 AM  

Theaetetus: 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.

I'd happily argue that.


We're dead as a species then. If every individual has the right to a biological weapon that an wipe out all of humanity, it will be used by one out of the 310,000,000 people in the US. It only takes one to end it all. Any of the crazed shooters who just want to take out as many people as possible we've had armed with a biological weapon is the end of it all. Constitution: not a suicide pact for all of humanity.
 
2012-10-05 12:00:44 PM  
This imaginary justice, Scalia continued, announces that it turns out "'the Constitution means exactly what I think it ought to mean.' No kidding."

Project much Scalia?
 
2012-10-05 12:02:53 PM  

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

No he says anything that you can carry. It's a stupid argument because "bearing arms" meant serving in a military, but that's what he says it means. That's more of an NRA definition than something from the founding fathers.

It also means that the 2nd amendment allows you to have as much nerve gas as you can carry or a small nuclear bomb.


Technically the the word arms for guns has little to do with being able to carry the weapon. The root of the word is "to equip" or to use a tool. A tool for war doesn't necessarily mean it has to be carried, we just call our upper appendages arms because they are our main tools as well.
 
2012-10-05 12:03:14 PM  
Huh. A judge who sees no use for judgement.
 
2012-10-05 12:07:52 PM  
Um, what would it take to get term limits for these jacktards? A constitutional amendment?
 
2012-10-05 12:09:13 PM  

WorldCitizen: Theaetetus: 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.

I'd happily argue that.

We're dead as a species then. If every individual has the right to a biological weapon that an wipe out all of humanity, it will be used by one out of the 310,000,000 people in the US. It only takes one to end it all. Any of the crazed shooters who just want to take out as many people as possible we've had armed with a biological weapon is the end of it all. Constitution: not a suicide pact for all of humanity.


So you're arguing that we should explicitly disregard the Constitution, as we shouldn't be bound to "a suicide pact for all of humanity"? Perhaps so, but that wasn't the question you originally asked - whether the 2nd amendment protects the right of citizens to keep nuclear arms. Certainly it does.

Furthermore, the 2nd Amendment gives you no right to use those arms. Certainly using a biological weapon to end it all is mass-murder at a minimum. You're not arguing that the 2nd Amendment doesn't guarantee the right to own handguns, for example, yet that doesn't mean that people have the right to shoot up a school. Clearly, the Constitution is not a "suicide pact" for victims of such shootings that needs to be disregarded, right?
Finally, if someone is going to use a biological weapon to wipe out all of humanity, do you think the existence or non-existence of a piece of paper is going to aid or hinder them either way? Like there's someone out there right now who would be setting off a nuke in L.A., but for the fact that the Supreme Court hasn't come around to this understanding of the second amendment? "Gosh, they haven't yet ruled on this, so I guess I'll have to reset the timer again... Stupid Justices." I don't think so.
 
2012-10-05 12:11:16 PM  

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


I would never trust the judgement of a person who has never thought about the law outside of a very specific court case.
 
2012-10-05 12:11:33 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.



Only if they're part of the "well-regulated militia," which is to say, the National Guard. It's funny to see how these guys cherry-pick the parts of the Constitution that they are going to get all literal about.

The Founders never imagined a standing army; they imagined each state would have a militia that showed up for drill with their own firearms. During a time of war the Feds would nationalize the state militias.

It's all right there in the Constitution, but since that's not what today's gun-fetishists want to believe, it's conveniently ignored.
 
2012-10-05 12:13:12 PM  

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


I agree, but Justice Scalia: would find anything limiting his power as unconstitutional.
 
2012-10-05 12:14:57 PM  
I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than Antonin Scalia.

The soft racism of low expectations.
 
2012-10-05 12:15:18 PM  

WorldCitizen:

We're dead as a species then. If every individual has the right to a biological weapon that an wipe out all of humanity, it will be used by one out of the 310,000,000 people in the US. It only takes one to end it all. Any of the crazed shooters who just want to take out as many people as possible we've had armed with a biological weapon is the end of it all. Constitution: not a suicide pact for all of humanity.


look at it this way - technology is outpacing the law at an ever increasingly rapid pace. so while creating personal nuclear weapons probably won't ever be a realistic option....genetic engineering and infotech systems could put a new class of 'weapons of mass destruction' into the hands of small groups or even dedicated individuals at some point in the semi-near future. But the law would call that illegal-ish (the courts suffer from serious lag), so you kinda/sorta get to be technically correct about that point.

I actually get a kick out of our legislature and court systems as they desperately try to keep up with technology. By the time they make a decision, technology has already moved past using what it was they made a ruling on in the first place.
 
2012-10-05 12:15:49 PM  
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?
 
2012-10-05 12:16:17 PM  

JustTheTip: Only if they're part of the "well-regulated militia," which is to say, the National Guard. It's funny to see how these guys cherry-pick the parts of the Constitution that they are going to get all literal about.

The Founders never imagined a standing army; they imagined each state would have a militia that showed up for drill with their own firearms. During a time of war the Feds would nationalize the state militias.

It's all right there in the Constitution, but since that's not what today's gun-fetishists want to believe, it's conveniently ignored.


Only if you assume that the Founders were illiterate boobs who couldn't properly string two clauses together. It also requires that you ignore the Federalist Papers, as well as the historical context of what had happened 10 years earlier.
 
2012-10-05 12:18:53 PM  

WorldCitizen: 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 can't hug your children with nuclear arms!

i50.tinypic.com

/check please
 
2012-10-05 12:22:58 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?


In the modern political world, it would most likely wait until a new person was in office.
 
2012-10-05 12:26:39 PM  
Let's not miss this part which I may have a quibble with, but also contains a lot of truth.

FTFA:
As he has said many times before, the justice said the people should turn to their elected lawmakers, not judges, to advocate for abortion rights or an end to the death penalty. Or they should try to change the Constitution, although Scalia said the Constitution makes changing it too hard by requiring 38 states to ratify an amendment for it to take effect.

"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.
 
2012-10-05 12:28:52 PM  
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.
 
2012-10-05 12:28:57 PM  

WorldCitizen: edmo: So it doesn't prevent restrictions on abortion.
So it doesn't prevent restrictions on capital punishment.
So it doesn't prevent restrictions on homosexual sodomy. oops
So it doesn't prevent restrictions on restrictions on homosexual sodomy.

That's a pretty solid case there judge.Seems legit.

He's one of the people those Founders who were against a bill of rights feared. They feared some idiots would come along some day and say if a right wasn't included in the list, the idiots would think the Constitution didn't grant that right if it otherwise didn't list it has prohibited. Well, Scalia proved them right.


The Bill of Rights doees't grant rights to the citizens of this country. It limits the powers of the Federal Government.
 
2012-10-05 12:29:07 PM  
The Constitution makes no mention of killing people and yet prevents the government from placing restrictions on owning weapon. Clearly, our Founding Fathers want us to shoot each other whenever and where ever.
 
2012-10-05 12:30:09 PM  

Theaetetus: WorldCitizen: Theaetetus: 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.

I'd happily argue that.

We're dead as a species then. If every individual has the right to a biological weapon that an wipe out all of humanity, it will be used by one out of the 310,000,000 people in the US. It only takes one to end it all. Any of the crazed shooters who just want to take out as many people as possible we've had armed with a biological weapon is the end of it all. Constitution: not a suicide pact for all of humanity.

So you're arguing that we should explicitly disregard the Constitution, as we shouldn't be bound to "a suicide pact for all of humanity"? Perhaps so, but that wasn't the question you originally asked - whether the 2nd amendment protects the right of citizens to keep nuclear arms. Certainly it does.

Furthermore, the 2nd Amendment gives you no right to use those arms. Certainly using a biological weapon to end it all is mass-murder at a minimum. You're not arguing that the 2nd Amendment doesn't guarantee the right to own handguns, for example, yet that doesn't mean that people have the right to shoot up a school. Clearly, the Constitution is not a "suicide pact" for victims of such shootings that needs to be disregarded, right?
Finally, if someone is going to use a biological weapon to wipe out all of humanity, do you think the existence or non-existence of a piece of paper is going to aid or hinder them either way? Like there's someone out there right now who would be setting off a nuke in L.A., but for the fact that the Supreme Court hasn't come aroun ...


Well, it might very well be open to that interpretation. I'm still bothered by our total disregard for the meaning behind the first half of the Amendment which seems to nearly always be completely ignored for context.

It could be argued that we all have the right to keep arms of all kinds including hydrogen bombs. So far, we have not interpreted it that way as we place all kinds of limits on what types of arms are allowed. So far we've said, sure, you're allowed to bear arms, but that does not mean any kind of arms imaginable. That might or might not be disregarding the Constitution. It might just be interpretation. Otherwise, the Air Force is clearly unconstitutional.
 
2012-10-05 12:32:16 PM  

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

and cannabis would be legal. hey, half the gotdamn founding fathers grew hemp on their plantations.


And there'd be little to know immigration laws and open borders!
 
2012-10-05 12:35:49 PM  
Little to no*

Although little to know kinda works too.
 
2012-10-05 12:36:24 PM  
" ...`or else it's based on information from someone who has violated his oath of confidentiality, that is to say, a non-reliable source."

Faulty logic for a Justice.

Just because you might not let him babysit your kids doesn't make him a liar.
 
2012-10-05 12:38:38 PM  

Theaetetus: Americans have the right to bear nuclear arms.

I'd happily argue that.


Ambitwistor: You can't hug your children with nuclear arms!

[i50.tinypic.com image 467x348]

/check please


ytrewq.com
 
2012-10-05 12:39:49 PM  

WorldCitizen: Theaetetus: WorldCitizen: Theaetetus: 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.

I'd happily argue that.

We're dead as a species then. If every individual has the right to a biological weapon that an wipe out all of humanity, it will be used by one out of the 310,000,000 people in the US. It only takes one to end it all. Any of the crazed shooters who just want to take out as many people as possible we've had armed with a biological weapon is the end of it all. Constitution: not a suicide pact for all of humanity.

So you're arguing that we should explicitly disregard the Constitution, as we shouldn't be bound to "a suicide pact for all of humanity"? Perhaps so, but that wasn't the question you originally asked - whether the 2nd amendment protects the right of citizens to keep nuclear arms. Certainly it does.

Furthermore, the 2nd Amendment gives you no right to use those arms. Certainly using a biological weapon to end it all is mass-murder at a minimum. You're not arguing that the 2nd Amendment doesn't guarantee the right to own handguns, for example, yet that doesn't mean that people have the right to shoot up a school. Clearly, the Constitution is not a "suicide pact" for victims of such shootings that needs to be disregarded, right?
Finally, if someone is going to use a biological weapon to wipe out all of humanity, do you think the existence or non-existence of a piece of paper is going to aid or hinder them either way? Like there's someone out there right now who would be setting off a nuke in L.A., but for the fact that the Supreme Court hasn't ...


People aren't ignoring the first half of the Second Amendment. It is clearly, obviously, and quite verifiably there for context. Saying it is for the right for you to bear arms as a part of a militia is ignoring context. Read the federalist papers and the multitude of quotes from the founding fathers that explicitly describe their thoughts on the importance of the individual ownership of arms.

"I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them."
George Mason
Co-author of the Second Amendment
during Virginia's Convention to Ratify the Constitution, 1788

"... the people are confirmed by the next article in their right to keep and bear their private arms"
Philadelphia Federal Gazette
June 18, 1789, Pg. 2, Col. 2
Article on the Bill of Rights

And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the Press, or the rights of Conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; ..."
Samuel Adams
quoted in the Philadelphia Independent Gazetteer, August 20, 1789, "Propositions submitted to the Convention of this State"

"Firearms stand next in importance to the constitution itself. They are the American people's liberty teeth and keystone under independence ... from the hour the Pilgrims landed to the present day, events, occurences and tendencies prove that to ensure peace security and happiness, the rifle and pistol are equally indispensable ... the very atmosphere of firearms anywhere restrains evil interference - they deserve a place of honor with all that's good."
George Washington
First President of the United States

"To preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them."
Richard Henry Lee
American Statesman, 1788

"The constitutions of most of our States assert that all power is inherent in the people; that ... it is their right and duty to be at all times armed; ... "
Thomas Jefferson
letter to Justice John Cartwright, June 5, 1824. ME 16:45.

"The best we can help for concerning the people at large is that they be properly armed."
Alexander Hamilton
The Federalist Papers at 184-8
 
2012-10-05 12:40:14 PM  
Also easy cases? Deciding innocent people should be executed.
 
2012-10-05 12:44:05 PM  

WorldCitizen: Well, it might very well be open to that interpretation. I'm still bothered by our total disregard for the meaning behind the first half of the Amendment which seems to nearly always be completely ignored for context.


Actually, I think it's the other way around... People try to interpret the first clause in a way consistent with our current understanding of the terms to limit the second clause, while disregarding the context of it in the late 1700s. It's not their fault, though - the clause obfuscates the purpose, because it's tiptoeing around the inherent contradiction of enabling revolution against the government in a document establishing the government: rebellion is treason, and cannot be protected by the Constitution... but the right to bear arms is necessary as a deterrent against a tyrannical government - i.e. necessary to secure a free state.

It could be argued that we all have the right to keep arms of all kinds including hydrogen bombs. So far, we have not interpreted it that way as we place all kinds of limits on what types of arms are allowed. So far we've said, sure, you're allowed to bear arms, but that does not mean any kind of arms imaginable. That might or might not be disregarding the Constitution. It might just be interpretation. Otherwise, the Air Force is clearly unconstitutional.

That doesn't follow. You're saying that because we place limits on ownership of arms, contrary to the second amendment, therefore Congress lacks power under Article I to implement an Air Force? Forgive me, but you sound as if you heard the "air force is unconstitutional" argument once before and never really understood what it meant or even what parts of the Constitution would be relevant to such an argument.
 
2012-10-05 12:44:33 PM  
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. The idea that the rights guaranteed by the Constitution change over time means that we have nine unelected people with life tenure who get to decide how far common notions about privacy, sex, and family have changed and thus create laws that govern 300,000,000 people.

He is NOT saying that consensual sodomy and abortion should be illegal. What he is saying is that the Constitution doesn't require that these things be legal. And if people want them to be legal, then we have 50 little republics across this land in which the citizens of each republic can elect leaders who will draft laws that reflect what they want. The idea that the Supreme Court can just create new rights by fiat is both undemocratic and is anathema to local and state democracy (people don't get involved in state and local politics to protect their rights because they know that it's easier just to go through the courts). And maybe if there was more participate in state and local democracy--especially liberal participation--we'd have more people in place that would work to solve issues like police corruption and low-quality public schools. But because state and local governments have very little direct impact on our lives (in part because the Supreme Court has usurped many of their policy making functions), no on gets involved.

I'm not saying he's right (and we all know he's not consistent in applying his viewpoint). But I am saying that if people gave his point of view a little credit they might actually think about these issues and have better things to say in response.
 
2012-10-05 12:46:25 PM  

Ambitwistor: You can't hug your children with nuclear arms!


www.dekaresearch.com
... yet.
 
2012-10-05 12:49:54 PM  

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.?
 
2012-10-05 12:50:24 PM  

WorldCitizen: He's one of the people those Founders who were against a bill of rights feared. They feared some idiots would come along some day and say if a right wasn't included in the list, the idiots would think the Constitution didn't grant that right if it otherwise didn't list it has prohibited. Well, Scalia proved them right.


THIS.

Aparantly hizzoner never got all the way down to Amendments 9 and 10. He can also twist the definition of words beyond all recognition.

Can't wait until this asshole drops dead. I just hope there's a Democrat in office when he does.
 
2012-10-05 12:51:32 PM  

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. The idea that the rights guaranteed by the Constitution change over time means that we have nine unelected people with life tenure who get to decide how far common notions about privacy, sex, and family have changed and thus create laws that govern 300,000,000 people.

He is NOT saying that consensual sodomy and abortion should be illegal. What he is saying is that the Constitution doesn't require that these things be legal. And if people want them to be legal, then we have 50 little republics across this land in which the citizens of each republic can elect leaders who will draft laws that reflect what they want. The idea that the Supreme Court can just create new rights by fiat is both undemocratic and is anathema to local and state democracy (people don't get involved in state and local politics to protect their rights because they know that it's easier just to go through the courts). And maybe if there was more participate in state and local democracy--especially liberal participation--we'd have more people in place that would work to solve issues like police corruption and low-quality public schools. But because state and local governments have very little direct impact on our lives (in part because the Supreme Court has usurped many of their policy making functions), no on gets involved.

I'm not saying he's right (and we all know he's not consistent in applying his viewpoint). But I am saying that if people gave his point of view a little credit they might actually think about these issues and have better things to say in response.


But this common sense approach that you discuss above would not fit the liberal narrative that Scalia is a crazy lunatic who means to hurt everyone and is evil to the core.
 
2012-10-05 12:53:26 PM  

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".
 
2012-10-05 12:55:48 PM  
So the guy who rails against the concept of referring to legislative history and discussions of the potential meanings and impacts of bills on the floor of the House and Senate as "meaningless because it's not written into the actual text of the law" decides that it's up to him to interpret the true meaning of the writers of the Constitution based on ....... historical context?

He always was full of shiat, but his emperor's clothes are doing a poorer job of covering that than they used to.
 
2012-10-05 12:57:05 PM  

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.
 
2012-10-05 12:57:21 PM  

Theaetetus: WorldCitizen: Well, it might very well be open to that interpretation. I'm still bothered by our total disregard for the meaning behind the first half of the Amendment which seems to nearly always be completely ignored for context.

Actually, I think it's the other way around... People try to interpret the first clause in a way consistent with our current understanding of the terms to limit the second clause, while disregarding the context of it in the late 1700s. It's not their fault, though - the clause obfuscates the purpose, because it's tiptoeing around the inherent contradiction of enabling revolution against the government in a document establishing the government: rebellion is treason, and cannot be protected by the Constitution... but the right to bear arms is necessary as a deterrent against a tyrannical government - i.e. necessary to secure a free state.

It could be argued that we all have the right to keep arms of all kinds including hydrogen bombs. So far, we have not interpreted it that way as we place all kinds of limits on what types of arms are allowed. So far we've said, sure, you're allowed to bear arms, but that does not mean any kind of arms imaginable. That might or might not be disregarding the Constitution. It might just be interpretation. Otherwise, the Air Force is clearly unconstitutional.

That doesn't follow. You're saying that because we place limits on ownership of arms, contrary to the second amendment, therefore Congress lacks power under Article I to implement an Air Force? Forgive me, but you sound as if you heard the "air force is unconstitutional" argument once before and never really understood what it meant or even what parts of the Constitution would be relevant to such an argument.


No, I'm saying, the Constitution is open to interpretation (or else we would have an extremely minimalist federal government, which we don't). So, either it's flexible and we have an Air Force and the ability to interpret "the right to bear arms" to mean, yes, but no unlimited TYPES of arms or it's not open to interpretation and we have an individual right to nukes and no Air Force. So far as a society, we've gone very much down the it's a flexible document open to interpretation route.

And I've said this in other threads, I don't worship at the alter of the Constitution. I believe in rights. Where they fall in line with the Constitution, I will damn well expect the government to enforce their existence. Where they don't fall in line with the Constitution, or at least some judges interpretation of it, I will support change in whatever context that comes.

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

Right to free speech/thought.
Right to freedom of religion (or lack of religion)
Right to be free from physical or property harm
Right to control what goes in and comes out of your own body (including the decision to end the life of that body).
Equality before the law for all people.

So, the only alter I worship at is one where those rights burn bright, and I believe in them for all of humanity and not just my tribe.
 
2012-10-05 12:59:14 PM  
Tell me again how someone gets a fair hearing before Scalia. Basically he's now on record as saying he's decided the case before he hears it. The Constitution was a great compromise. The Founding fathers, however you want to define them, were not all of one mind. many were on the cutting edge of philosophy at the time and who knows their positions on the issues of today in today's world. Oh that's right. Scalia knows.
 
2012-10-05 01:01:05 PM  

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).
 
2012-10-05 01:03:00 PM  

Theaetetus: arms are just about anything.


+1
 
2012-10-05 01:04:53 PM  

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


This...
 
2012-10-05 01:04:57 PM  

WorldCitizen: No, I'm saying, the Constitution is open to interpretation (or else we would have an extremely minimalist federal government, which we don't). So, either it's flexible and we have an Air Force and the ability to interpret "the right to bear arms" to mean, yes, but no unlimited TYPES of arms or it's not open to interpretation and we have an individual right to nukes and no Air Force. So far as a society, we've gone very much down the it's a flexible document open to interpretation route.


Again, that makes no sense and it sounds like someone who has never read the Constitution or understood where the argument about the air force's constitutionality comes from. It's the difference between describing the scope of an enumerated power in Article 1, and describing the scope of a constitutionally guaranteed right. There's no requirement that both scopes be read in exactly the same way, with the same jurisprudence.

Further, the argument is incorrect anyway, as it disregards the Necessary and Proper clause.
 
2012-10-05 01:06:18 PM  

WorldCitizen: 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.


Well, since none of those things were invented yet. You also can't "bear" a nuclear weapon because it would be a little too heavy. Also lacking were the randomly violent snipers. But hey, we're only considering what they were thinking when they wrote the Constitution.

You see this is one way to reduce the Constitution to some inoperable piece of paper, which is what this Supreme Court Justice actually wants -because then he can interpret it anyway he wants.
 
2012-10-05 01:06:51 PM  

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
 
2012-10-05 01:09:05 PM  

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?
 
2012-10-05 01:09:32 PM  

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


I'm not sure this is such a great idea, but I could be convinced otherwise. Here are two reasons why I think it's bad; both related to after-service employment.

1. If they were term limited, they could be more easily swayed by corporations to rule in their favor due to backroom deals for future jobs. This is a problem in Congress now when someone leave to be CEO of a company or a big time lobbyist. I suppose it could be argue that corporations sway them anyway, but it could potentially be much worse.

2. On a similar note, where would they work, what would they do afterwards? I can't imagine they would go back to being a "regular" judge or lawyer; or whatever other profession they came from.

Ultimately, setting them up for life gives them free reign to make up their own mind and not be swayed by outside influence. There are example in the past (citation needed.jpg) of traditionally liberal/conservative justices moving towards the center or switching sides completely once they were on the high court.
 
2012-10-05 01:10:03 PM  

Because People in power are Stupid: WorldCitizen: 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.

Well, since none of those things were invented yet. You also can't "bear" a nuclear weapon because it would be a little too heavy. Also lacking were the randomly violent snipers. But hey, we're only considering what they were thinking when they wrote the Constitution.

You see this is one way to reduce the Constitution to some inoperable piece of paper, which is what this Supreme Court Justice actually wants -because then he can interpret it anyway he wants.


Suitcase nukes?

Pretty sure you can carry around an spray can of biological or chemical arms.
 
2012-10-05 01:11:09 PM  

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".


"Ordnance". No 'I'. One means "a law or rule", the other means "heavy or explosive weaponry".

// there was a funny conversation in the Dreidel household when your humble doctor was but a small boy:
// my older brother, thumbing through a DC tourism guide, asked the folks if we could go to the Ordnance Museum
// I asked what the point was of going to a museum about laws, while my folks demurred (I think we were heading to Baltimore for something that day)
// so my brother asks: "Can we just go to the gift shop, then?"
 
2012-10-05 01:23:00 PM  

Zeb Hesselgresser: I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than Antonin Scalia.

The soft racism of low expectations.


A pocket calculator with an alarm clock hooked up to it would reach a better conclusion than Antonin Scalia most of the time.
 
2012-10-05 01:31:44 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


Sticks and stones may break my bones, but names shall never hurt me...
 
2012-10-05 01:35:29 PM  

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


And the beauty is the states can do it without needing Congress.
 
2012-10-05 01:38:12 PM  
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.
 
2012-10-05 01:41:04 PM  

Wally007: 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

Sticks and stones may break my bones, but names shall never hurt me...


I think you have a right to say anything. If in civil court someone can prove that you words caused harm to your property, then perhaps you have a good civil case against someone for what they said. But not criminal.
 
2012-10-05 01:42:12 PM  
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.
 
2012-10-05 01:45:28 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.


IIRC, sodomy laws also cover just about any sex act beyond missionary style with the lights off. Heterosexual oral sex is considered "sodomy" in some states.

Also, even if you are being a pedant, you're absolutely correct.
 
2012-10-05 01:46:23 PM  

WorldCitizen: Wally007: 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

Sticks and stones may break my bones, but names shall never hurt me...

I think you have a right to say anything. If in civil court someone can prove that you words caused harm to your property, then perhaps you have a good civil case against someone for what they said. But not criminal.


So, in other words, you believe in a right to freedom from criminal penalty for speech/thought, yes? A little narrower than your previous statement, but I think it's reasonable.

... but wait, what if you threaten someone? What about false reporting of a crime to get someone else in trouble? What about fraud, perjury, blackmail, etc.? And what if the person is broke and your civil case against them would be useless?
 
2012-10-05 01:49:38 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.


... 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.
 
2012-10-05 01:50:14 PM  

wisewerds: 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.


So what part of the US Constitution grants citizens' rights to corporations and similar nebulous entities?
 
2012-10-05 01:51:55 PM  

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.
 
2012-10-05 01:51:59 PM  

Theaetetus: WorldCitizen: Wally007: 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

Sticks and stones may break my bones, but names shall never hurt me...

I think you have a right to say anything. If in civil court someone can prove that you words caused harm to your property, then perhaps you have a good civil case against someone for what they said. But not criminal.

So, in other words, you believe in a right to freedom from criminal penalty for speech/thought, yes? A little narrower than your previous statement, but I think it's reasonable.

... but wait, what if you threaten someone? What about false reporting of a crime to get someone else in trouble? What about fraud, perjury, blackmail, etc.? And what if the person is broke and your civil case against them would be useless?


Well, freedoms and rights do bump into each other, yes. I think you're trying to paint me into some absolutist who believes everything in life is black or white, I'm not. Life is not. Saying I believe in freedom of speech does not mean that there are not cases where freedom of speech ends at the right of another to be free from physical harm. If you are threatening to kill someone or cause them harm, then your freedom of speech is ending at their right to be free from physical harm. So yes, you can play this game. I can continue to broaden my thoughts from the simple outline listed above to the more nuanced version if you would like me to shine light into the gray areas. Next?
 
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.
 
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.
 
2012-10-07 05:27:42 PM  

Theaetetus: 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.


Fine. Scalia's argument is essentially "You can tell the drafters of the 14th Amendment didn't intend it to apply to anti-sodomy laws specifically or gay rights generally, because anti-sodomy laws were common at the time the 14th Amendment was passed, and under the "clear statement rule" if the 14th Amendment was intended to apply to those things they would have said so clearly."

Your argument is "The drafters of the 14th Amendment intended the due process clause of the 5th Amendment to be applied exactly the same as the 5th Amendment."

Scalia would concede that you are correct, and also would note that your contention actually helps his position that it was never intended to apply to gay rights or sodomy laws.

The people who wrote the 14th intended it to be applied the same as the 5th. It's clear that the writers of the 5th also didn't intend for it to apply to anti-sodomy laws, for the exact same reason it's clear the writers of the 14th amendment didn't. Sodomy was illegal at the adoption of the 5th, was in fact illegal going all the way back to the 1500s, and there is no indication anywhere in the historical record that anyone ever thought the 5th Amendment should bar sodomy laws.

If your argument is that the due process clause in the 14th applies to the states exactly as the 5th amendment applies to the federal government, then now you still need to show that the 5th Amendment due process clause was intended (by the drafters) to apply to gay rights and sodomy laws. It's clear from the state of the law at the time that they did not.

This entire thread has been about whether or not Scalia is a hypocrite for finding that an originalist/textualist argument against the 14th Amendemnt covering gay rights is hypocritical. It isn't hypocritical, although it is possibly based on a misunderstanding of the state of the law at the time (as Kennedy's argument points out).

Throughout, it's been pretty clear (I think) that this is what the discussion is about. You're argument that the 14th Due Process was intended to be read the same as the 5th Due Process, while correct, is irrelevant unless you can show that the drafters of the 5th Due Process (or the courts that had interpreted the 5th Due Process prior the 14th Due Process being enacted) should have applied to gay rights or anti-sodomy laws. That's going to be impossible for you to do however, since it's generally accepted that the 5th Amendment due process clause didn't have *any* substantive component to it. The entire idea of 'substantive due process' wasn't even conceived of until years later.

In reality, your argument that the 14th Due Process should be interpreted exactly the same as the original meaning of the 5th Due Procese clause would result in an interpretation of that is even *more* narrow than Scalia's (Scalia excepts substantive due process on stare decisis grounds).

See generally: http://www.yalelawjournal.org/the-yale-law-journal/content-pages/the-o ne-and-only-substantive-due-process-clause/
 
2012-10-07 05:29:09 PM  
Doh, typo in the "Your argument . . . " line. Obviously I meant to say that you feel the DP clause of the 14th should be applies the same as the 5th.
 
2012-10-07 05:49:32 PM  

Because People in power are Stupid: (My misstakes in these statements are are as clear as yours if not as deliberately deceitful.)


There is nothing 'deceitful' about them. Scalia's opinions about gay rights and sodomy laws have absolutely no effect on the current state of the law. And frankly, the problem with the current state of the law is the past courts. Past courts should have found that unenumerated substantive rights (like the right to marry or the right to earn a living) were protected by the P&I clause, but they didn't (Slaughterhouse Cases). If you're interested in the history of the 14th's PorI clause, what it was intended to cover, and how badly the Court screwed it up, you can read all about it here. The Court also should have found that the equal protection clause applied to gay marriage rights and sodomy laws (they didn't, Baker v. Nelson). Scalia had nothing to do with those. Now, what's left is to try to shoehorn gay rights into the protections provided by substantive due process, which is something it was never intended to do (as Scalia notes).

No one would happier than I would if the Supreme Court came in and overturned both of those cases. However, in general that's not what people in the legal community are arguing for. They're making a substantive due process argument, and that's what Scalia is responding to. Scalia, being an originalist, is making an argument about what the original public meaning of the 14th Amendment (or the 5th) likely was, and you can tell that it wasn't understood to cover those issues because those were the legal norms at the time.

Now, you can argue that Scalia is wrong about what the legal norms were at the time (as Kennedy does in Lawrence) or you can argue that the DP clause shouldn't be read in an originalist/textualist manner. But that's not what the subby or most of the posters in this thread were doing. Most of them (to the extent that they even understand what they're saying) are simply arguing that he's an inconsistent hypocrite, which he's not (at least not on this issue, he is on commerce clause issues, but that's a topic for another thread).
 
2012-10-07 08:27:57 PM  

Talondel: 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.


No. Fark him. They're American citizens. This is America. They deserve everything other American citizens get. He can interpret anything however he wants, there's only one moral and correct way to see it, and that is letting gays have the same rights and freedoms as all other people living in this country. Punishing them for loving people of the same gender is a spit in the face to intelligence, decency, and humanity.
 
2012-10-07 09:23:13 PM  

Talondel: Scalia's opinions about gay rights and sodomy laws have absolutely no effect on the current state of the law


That is a distortion. The Supreme Court picks and chooses which arguments they hear. Scalia and members of the conservative wing will issue a writ of certiorari on cases that they feel will have as much "conservative" ideological impact as possible. So they are free to pick the cases that they feel will do the country as much harm as they can -like Citizens United.

Talondel: Now, you can argue that Scalia is wrong about what the legal norms were at the time (as Kennedy does in Lawrence)


No, Scalia is deliberately wrong. He may know that his reasoning may be challenged but he has an agenda -he writes his justification after considering his conservative goals.

If you want any case that highlights Scalia's breech of his judicial oath of impartiality. Look no further than Bush V Gore.
 
2012-10-08 12:02:00 AM  

Keizer_Ghidorah: No. Fark him. They're American citizens. This is America. They deserve everything other American citizens get. He can interpret anything however he wants, there's only one moral and correct way to see it, and that is letting gays have the same rights and freedoms as all other people living in this country. Punishing them for loving people of the same gender is a spit in the face to intelligence, decency, and humanity.


Once again, that's an equal protection argument, not a substantive due process argument. Ideally the rights of gay people to marry would have been protected under the equal protection clause, but unfortunately that issue was settled before Scalia ever got to the court.

Regarding your view that there is only one moral and correct way to interpret the 14th Amendment, that's your opinion and your entitled to it. There are certainly a number of scholars and jurists who believe that the Constitution should be interpreted to mean whatever you think it should mean in light of current morals and views. However, there are others that believe the entire point of writing down laws and constitutions is to have them interpreted to mean what the drafters intended for it to mean when they wrote it down, even if what they wrote is morally repugnant to a majority of people currently living (in that circumstance, the correct remedy is to amend the Constitution, not to have judges simply start interpreting it differently). The Constitution has an amendment process for a reason, and that's to prevent it from being altered by the whims of whoever currently holds a majority view (no matter what branch that majority comes from).

No one thinks that a simple Congressional majority should be able to rewrite the Constitution, but for some reason people think it's not just acceptable but required for a simple majority of the Judiciary to do the same thing. I wonder if people we be so in favor of judicially created rights, if it was a typically 'conservative' right at issue (such as the right to work) rather than a typically conservative issue? Would you support the Court if they suddenly decided that you do have a right to work, and overturned the Slaughterhouse Cases (which would have the practical effect of banning most state employment regulations and occupational licensing requirements).

Oh, and since some people seem set on turning this into a partisan issue. (

Because People in power are Stupid: Scalia and members of the conservative wing

) I guess it needs to be noted that the court that refused to apply equal protection to gay rights back in 1972 was a court that was dominated by liberals such as William Brennan, William Douglas, Hugo Black, Byron White, and Thurgood Marshall. They dismissed the case outright, having the effect of making the lower circuit court opinion a binding precedent on all circuit courts to this day. That court is the real reason that gay rights cases have difficulty getting any traction, but for some reason I don't see liberals hurling contempt at them the way they do at Scalia.

But please feel free to enlighten me with more talk about how Citizens United was a politically motivated partisan decision, despite the fact that the ACLU and the AFL-CIO both filed briefs supporting the position the court eventually took.

Because People in power are Stupid: Bush V Gore.


Every partisan hack's favorite case. The three conservatives and the two moderates all voted for Bush, the four liberals all voted for Gore, but somehow it's only the conservatives who were acting like partisan assholes, despite the fact that the dissenters all admit that what Gore has asked for was unconstitutional. Bottom line on BvG, if Gore wanted every vote counted, than he should have adopted a policy that would have resulted in every vote being counted. Instead he decided to ask for recounts only in districts where it benefited him. That's a clear violation of the Court's precedents which held that whatever vote counting procedure a state uses, is must apply them equally to all votes cast.

The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. Bush v. Gore, citing Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966)

Even the dissenting opinions in BvG agreed with that. The dissenters wanted the court to grant Gore a remedy that Gore himself had never asked for, which was to allow for a hand recount in the entire state.

And while I'm happy to educate you on CU and Bush V. Gore, if you don't mind I would prefer to limit this conversation to Scalia's Due Process jurisprudence, which is what we started off on.
 
2012-10-08 09:56:54 AM  

Talondel: I guess it needs to be noted that the court that refused to apply equal protection to gay rights back in 1972 was a court that was dominated by liberals such as William Brennan, William Douglas, Hugo Black, Byron White, and Thurgood Marshall.


Wow, I mean just wow. What a farkin' shill. Why not go back to the Dread Scott decision? Oh, how did they ever reverse these terrible democrat decisions?

Talondel: the ACLU and the AFL-CIO both filed briefs



Here is some news for you idiot: the ACLU and the AFL-CIO are not "liberal" organizations. It's been named so by conservatives like yourself who paint everything as a false dichotomy between Conservatives and Liberals. It's not. "Liberals" have their own agenda and both the ACLU (civil rights) and the AFL-CIO (unions) have their own agenda.

Talondel: Bush V Gore.

Every partisan hack's favorite case.


Then it should be YOUR favorite case since you are a right wing shill.


Talondel: The three conservatives and the two moderates all voted for Bush, the four liberals all voted for Gore,


Another lie. There were no "LIBERALS" on the Supreme court at the time.

And more to point (as right wing shills like to get off topic) Scalia's memory on the subject is faulty.

http://readersupportednews.org/news-section2/341-193/10417-scalia-re wr ites-history-of-bush-v-gore-decision


So once again you have shown yourself to be nothing more than a conservatively biased shill willing to spin facts to suit some half baked political theories and defend your hero Scalia. 
Talondel:

And while I'm happy to educate you on CU and Bush V. Gore,

Here's your homework since you volunteered to "educate me": Read the dissenting opinions and tell me how those opinions are "Liberal". Yes, I know you said you want to limit it to defense of your hero, but you made the statement so prove it.
 
2012-10-08 11:35:31 AM  

Because People in power are Stupid: Wow, I mean just wow. What a farkin' shill. Why not go back to the Dread Scott decision? Oh, how did they ever reverse these terrible democrat decisions?


Of course the Court is free to overturn its previous decisions. That's not the point. The point is that, so far as equal protection arguments go, they aren't currently making it to the Supreme Court because they all get shot down in the Circuit Courts, because the issue was already decided 40 years ago by 'liberals' like Thurgood Marshall (please feel free to add him to your list of Justice's that aren't actually liberal, if that makes you feel better). Scalia's comments aren't addressing the equal protection arguments, only the substantive due process arguments. Eventually, when those cases get back to the Supreme Court the Equal Protection and P&I arguments will come back up, but for now they're settled issues.

Because People in power are Stupid: by conservatives like yourself


I've openly come out in favor of abortion, drugs, gay marriage, and against anti-sodomy laws in this very thread, and that makes me a 'conservative' in your view? You either have a very weird world view, or you're a complete moron. I'll leave it to anyone who is still reading this thread to make that decision for themselves. Here's a tip for you: just because I believe in gay rights, love abortions, and wish that all drugs were legal, doesn't mean that I believe they are protected by the Constitution. Some rights, such as those described above, must be won not through the courts but through the political process. That means voting for people who will not infringe those rights, which (almost always) means voting Democrat. Please feel free to educate me about how people who vote Democratic aren't "really" liberal, just like Justices who consistently support liberal positions aren't "really" liberal. You ignorant twatwaffle

Because People in power are Stupid: Another lie. There were no "LIBERALS" on the Supreme court at the time.


Well, the answer to my previous question about your mental capacity is getting a little more clear. Please educate me as to the political leanings of Justice Stevens, Souter, Ginsberg, and Breyer, who were referred to universally by legal scholars throughout the land as the "liberal wing" of the Supreme Court at the time and still are to this day. I'm sure you know better than they do who is "really" liberal and conservative on the court. For fark's sake, you sound like those Republicans who go around claiming that Roberts isn't a 'real' conservative because he voted to uphold the individual mandate, and you appear to be every bit as ignorant of the Court's workings as they are.

Because People in power are Stupid: Here's your homework since you volunteered to "educate me": Read the dissenting opinions and tell me how those opinions are "Liberal". Yes, I know you said you want to limit it to defense of your hero, but you made the statement so prove it.


I didn't state the the opinions were liberal. Go back and read. I said the liberals (meaning the four liberal justices just described) all voted for Gore, and their opinions were all obviously in error because they all admitted that what Gore asked for was an unconstitutional denial of equal protection or due process, but they would choose to ignore that and grant Gore a remedy he had never asked for (a total hand recount of all votes in Florida). Here are the relevant portions where they admit that:

Petitioners have raised an equal protection claim (or, alternatively, a due process claim, see generally Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)), in the charge that unjustifiably disparate standards are applied in different electoral jurisdictions to otherwise identical facts. It is true that the Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters' intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on. But evidence in the record here suggests that a different order of disparity obtains under rules for determining a voter's intent that have been applied (and could continue to be applied) to identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics (such as "hanging" or "dimpled" chads). See, e.g., Tr., at 238-242 (Dec. 2-3, 2000) (testimony of Palm Beach County Canvassing Board Chairman Judge Charles Burton describing varying standards applied to imperfectly punched ballots in Palm Beach County during precertification manual recount); id., at 497-500 (similarly describing varying standards applied in Miami-Dade County); Tr. of Hearing 8-10 (Dec. 8, 2000) (soliciting from county canvassing boards proposed protocols for determining voters' intent but declining to provide a precise, uniform standard). I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters' fundamental rights. The differences appear wholly arbitrary.

Stevens' Dissent

Admittedly, the use of differing substandards for determining voter intent in different counties employing similar voting systems may raise serious concerns. . . Even assuming that aspects of the remedial scheme might ultimately be found to violate the Equal Protection Clause, I could not subscribe to the majority's disposition of the case. Souter's Dissent

The majority's third concern does implicate principles of fundamental fairness. Breyer's Dissent

Again, the bottom line in Bush v. Gore, thay all 9 Justices agreed on, was that the recount Gore had requested was a violation of Equal Protection principles. If Gore really cared about counting every vote, he should have asked that every vote be counted, instead of asking that only the districts favoring him be recounted. Gore and his advisers have admitted that mistake since. But I'm sure you know better than Gore does what really happened. The only difference between the justices is that some believed that meant the recount should be halted, and others believed that the recount should be extended so that all the votes could be recounted in the same way.
 
2012-10-08 11:53:16 AM  

Talondel: I've openly come out in favor of abortion, drugs, gay marriage, and against anti-sodomy laws in this very thread


Douchy, you come out in favor of these things to appear to be a moderate. When you say things like:

Talondel: The three conservatives and the two moderates all voted for Bush, the four liberals all voted for Gore, but somehow it's only the conservatives who were acting like partisan assholes


You reveal yourself as the farking partisan shill that you are. Not educated, not snarky, not smart and funny - a partisan shill.
 
2012-10-08 01:57:24 PM  

Because People in power are Stupid: You reveal yourself as the farking partisan shill that you are. Not educated, not snarky, not smart and funny - a partisan shill.


i5.photobucket.com

i5.photobucket.com
 
2012-10-08 09:24:29 PM  

Talondel: Because People in power are Stupid: You reveal yourself as the farking partisan shill that you are. Not educated, not snarky, not smart and funny - a partisan shill.

[i5.photobucket.com image 252x342]

[i5.photobucket.com image 400x277]


Yeah douche, you seem to have a pattern of shilling for Catholic Conservatives.

So the Catholic Church deems homosexual marriage to be a sin. Are you ready for excommunication?

Talondel: I support gay marriage, support laws banning workplace discrimination


Why don't you bring this up with your Catholic Buddies? Or is it more likely that you say things like that in order to soften your image to appear as you call it "liberal" with serious pro-catholic dictatorship leanings.
 
2012-10-08 09:45:02 PM  

Talondel: Keizer_Ghidorah: No. Fark him. They're American citizens. This is America. They deserve everything other American citizens get. He can interpret anything however he wants, there's only one moral and correct way to see it, and that is letting gays have the same rights and freedoms as all other people living in this country. Punishing them for loving people of the same gender is a spit in the face to intelligence, decency, and humanity.

Once again, that's an equal protection argument, not a substantive due process argument. Ideally the rights of gay people to marry would have been protected under the equal protection clause, but unfortunately that issue was settled before Scalia ever got to the court.

Regarding your view that there is only one moral and correct way to interpret the 14th Amendment, that's your opinion and your entitled to it. There are certainly a number of scholars and jurists who believe that the Constitution should be interpreted to mean whatever you think it should mean in light of current morals and views. However, there are others that believe the entire point of writing down laws and constitutions is to have them interpreted to mean what the drafters intended for it to mean when they wrote it down, even if what they wrote is morally repugnant to a majority of people currently living (in that circumstance, the correct remedy is to amend the Constitution, not to have judges simply start interpreting it differently). The Constitution has an amendment process for a reason, and that's to prevent it from being altered by the whims of whoever currently holds a majority view (no matter what branch that majority comes from).

No one thinks that a simple Congressional majority should be able to rewrite the Constitution, but for some reason people think it's not just acceptable but required for a simple majority of the Judiciary to do the same thing. I wonder if people we be so in favor of judicially created rights, if it was a typically 'conservati ...


Blah blah blah, we get it, you're not for equal rights for everyone, Scalia is perfectly correct in keeping them as sub-human. You're not worth talking to anymore.
 
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