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(Talking Points Memo)   Strict constitutionalist Judge Scalia: Voting rights "are not the kind of question you leave to Congress". Amendment 14, U.S. Constitution: Voting rights can only be determined by Congress   (editors.talkingpointsmemo.com) divider line 264
    More: Fail, Judge Scalia, congresses, U.S. Constitution  
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3505 clicks; posted to Politics » on 27 Feb 2013 at 6:18 PM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2013-02-27 04:40:00 PM
Scalia wrong again?  Must be a day that ends in Y.
 
2013-02-27 04:43:29 PM
Scalia only cares about the original, pre-amendment Constitution. The amendments only matter if they reinforce what he believes the world should be like. Original intent means they intended the US to be the way he thinks it should be.
 
2013-02-27 04:47:49 PM
He is a passionate defender of what he imagines the constitution to be
 
2013-02-27 04:47:58 PM
I'm interest in context.  Obviously, the article provided none.
 
2013-02-27 04:53:52 PM

netizencain: I'm interest in context.  Obviously, the article provided none.


Agreed. I clicked the link, and the context seems to be that Scalia feels that the Voting Rights Act will be extended into perpetuity even when it has no connection with the actual enforcement clause of the 15th Amendment.

It's not much of a legal argument, especially coming from a strict textualist.
 
2013-02-27 04:53:59 PM

dr_blasto: Scalia only cares about the original, pre-amendment Constitution. The amendments only matter if they reinforce what he believes the world should be like. Original intent means they intended the US to be the way he thinks it should be.


Scalia only cares about Jefferson's first rough draft
 
2013-02-27 05:01:18 PM

Rincewind53: netizencain: I'm interest in context.  Obviously, the article provided none.

Agreed. I clicked the link, and the context seems to be that Scalia feels that the Voting Rights Act will be extended into perpetuity even when it has no connection with the actual enforcement clause of the 15th Amendment.

It's not much of a legal argument, especially coming from a strict textualist.


I just get tired of the trend around here of 'I read something bullshiatty from source A, website B or person C so I'm going to discount everything I ever hear from them again."  While obviously we can all discount moronic shiat like what's on Conservepedia, this guy is a respected judge in our country.  I'd like to read and understand his comments so I can make a sound judgement.  Half you twats only digest things that fall in line with your  own socio-political-economic mind set.  You're like my sainted catholic mother that thinks she is expanding her understanding of religion by reading books about Catholicism... and only Catholicism.
 
2013-02-27 05:01:25 PM

Rincewind53: netizencain: I'm interest in context.  Obviously, the article provided none.

Agreed. I clicked the link, and the context seems to be that Scalia feels that the Voting Rights Act will be extended into perpetuity even when it has no connection with the actual enforcement clause of the 15th Amendment.

It's not much of a legal argument, especially coming from a strict textualist.


It's not an argument at all. He's basically saying "Congress thinks it does serve a purpose, but I personally don't think so, so I'm going to overturn it".
 
2013-02-27 05:02:31 PM
I think Scalia is bitter that he never got a chance to own people.
 
2013-02-27 05:02:50 PM

Rincewind53: netizencain: I'm interest in context.  Obviously, the article provided none.

Agreed. I clicked the link, and the context seems to be that Scalia feels that the Voting Rights Act will be extended into perpetuity even when it has no connection with the actual enforcement clause of the 15th Amendment.

It's not much of a legal argument, especially coming from a strict textualist.


Especially for a guy who is supposed tot believe in deferring to congress unless congress acts in derogation of the constitution.

We will have to wait for his opinion, but at this point "congress lacks the political will to repeal a constitutional but obsolete law so we will have to do it" is... less than convinving, let's say.
 
2013-02-27 05:03:30 PM
 
2013-02-27 05:04:37 PM

naughtyrev: I think Scalia is bitter that he never got a chance to own people.


So am I.

While we're on the subject, I also want a throne made of skulls.
 
vpb [TotalFark]
2013-02-27 05:14:28 PM
I thought the oddest part of his opinion on the Heller case was where he called the argument that the founding fathers were referring to flintlock muskets in the 2nd amendment "bordering on frivolous".

You can't come up with a better example of his "original intent" doctrine that that.

He doesn't believe in anything but partisan activism.
 
2013-02-27 05:17:00 PM
pbs.twimg.com
 
2013-02-27 05:17:33 PM
The constitution means whatever he intends for it to mean.
 
2013-02-27 05:19:45 PM

vpb: I thought the oddest part of his opinion on the Heller case was where he called the argument that the founding fathers were referring to flintlock muskets in the 2nd amendment "bordering on frivolous".


It is bordering on frivolous.  The point was to enable people to defend themselves and to assist in defense of the community with whatever weapons they needed to be effective.  Also, long rifles were expensive and vastly superior in range and accuracy to muskets.  England at one point tried to stop importation of long rifles from France into the colonies.  (France, BTW, made some really superb firearms in that era.)
 
2013-02-27 05:22:41 PM

Nabb1: The point was to enable people to defend themselves and to assist in defense of the community with whatever weapons they needed to be effective.


Amazing how the amendment doesn't say this.
 
2013-02-27 05:26:21 PM

Nabb1: vpb: I thought the oddest part of his opinion on the Heller case was where he called the argument that the founding fathers were referring to flintlock muskets in the 2nd amendment "bordering on frivolous".

It is bordering on frivolous.  The point was to enable people to defend themselves and to assist in defense of the community with whatever weapons they needed to be effective.  Also, long rifles were expensive and vastly superior in range and accuracy to muskets.  England at one point tried to stop importation of long rifles from France into the colonies.  (France, BTW, made some really superb firearms in that era.)


It is still an interpretation of constitutional intent. that doesn't jibe with his clucking on originalism or whateverthefark he calls his shtick. It may be a ridiculous argument but that isn't related to the apparent about-face Scalia is willing to do to fit the Constitution to his ideals, regardless of compatibility.
 
2013-02-27 05:28:33 PM

DamnYankees: Nabb1: The point was to enable people to defend themselves and to assist in defense of the community with whatever weapons they needed to be effective.

Amazing how the amendment doesn't say this.


No, but it doesn't say "muskets," either.  Nor does anyone seriously argue that the First Amendment should be limited when it comes to other forms of communication because the founders knew only the printing press and standing in the town square and shouting as a means of communicating.
 
2013-02-27 05:33:45 PM

dr_blasto: It is still an interpretation of constitutional intent. that doesn't jibe with his clucking on originalism or whateverthefark he calls his shtick. It may be a ridiculous argument but that isn't related to the apparent about-face Scalia is willing to do to fit the Constitution to his ideals, regardless of compatibility.


I don't give a rat's ass whether Scalia is rigidly consistent with what he or anyone else professes his ideology to be.  I think the "musket" argument in regards to the Second Amendment is preposterous.  Do you want to debate whether the Second Amendment may be an anachronism in modern society?  That's fair game.  There's certainly an argument to be made for that.  But, trying to argue that there was some intent to limit people's ability to procure weapons underlying it is inaccurate, in my opinion.  Rifles were really, really expensive in that era, and highly valued on the frontier as a means not only of defense out in the wilderness, but often times of feeding one's family.
 
2013-02-27 05:37:03 PM

netizencain: I just get tired of the trend around here of 'I read something bullshiatty from source A, website B or person C so I'm going to discount everything I ever hear from them again."  While obviously we can all discount moronic shiat like what's on Conservepedia, this guy is a respected judge in our country.  I'd like to read and understand his comments so I can make a sound judgement.  Half you twats only digest things that fall in line with your  own socio-political-economic mind set.  You're like my sainted catholic mother that thinks she is expanding her understanding of religion by reading books about Catholicism... and only Catholicism.


Uhhh... what part of my interpreting his legal argument did you disagree with? The fact that I thought it was a weak argument? Should I have attached a C.V. to the end of my post in order to be allowed to have an opinion on his argument?

/P.S., I actually do know quite a bit about what I'm talking about regarding Scalia, textualism, orginalism, living constitutionalism, and the shifts in judicial interpretation of the Fifteenth Amendment's enforcement clause.
 
2013-02-27 05:37:52 PM

Nabb1: Nor does anyone seriously argue that the First Amendment should be limited when it comes to other forms of communication because the founders knew only the printing press and standing in the town square and shouting as a means of communicating.


This is true, but that's the difference. The first amendment talks about a general principle, not assuring the right to a given piece of technology. Think of it like this:

Real First Amendment: No abridging the freedom of speech
Fake First Amendment: No abridging right to own a printing press

Real Second Amendment: Right to bear arms
Fake Second Amendment: RIght to defend oneself.

Notice how the real first amendment is similar to the fake second amendment and vice versa. The second amendment, whether or not you like the principles behind is, is written like shiat.
 
2013-02-27 05:39:21 PM

Nabb1: dr_blasto: It is still an interpretation of constitutional intent. that doesn't jibe with his clucking on originalism or whateverthefark he calls his shtick. It may be a ridiculous argument but that isn't related to the apparent about-face Scalia is willing to do to fit the Constitution to his ideals, regardless of compatibility.

I don't give a rat's ass whether Scalia is rigidly consistent with what he or anyone else professes his ideology to be.  I think the "musket" argument in regards to the Second Amendment is preposterous.  Do you want to debate whether the Second Amendment may be an anachronism in modern society?  That's fair game.  There's certainly an argument to be made for that.  But, trying to argue that there was some intent to limit people's ability to procure weapons underlying it is inaccurate, in my opinion.  Rifles were really, really expensive in that era, and highly valued on the frontier as a means not only of defense out in the wilderness, but often times of feeding one's family.


I actually had more to add, but the phone rang.  In any case, during the Revolution, the militia had to be able to contribute to fighting the British, and they brought their own weapons when they fought alongside the Continental Army.  It would be ridiculous not to allow those men to arm themselves with weaponry to enable them to face off an armed opposition.  The militia had guns that were in some respects superior to the guns carried by British soldiers, and everyone knew it.
 
2013-02-27 05:41:29 PM

DamnYankees: Nabb1: Nor does anyone seriously argue that the First Amendment should be limited when it comes to other forms of communication because the founders knew only the printing press and standing in the town square and shouting as a means of communicating.

This is true, but that's the difference. The first amendment talks about a general principle, not assuring the right to a given piece of technology. Think of it like this:

Real First Amendment: No abridging the freedom of speech
Fake First Amendment: No abridging right to own a printing press

Real Second Amendment: Right to bear arms
Fake Second Amendment: RIght to defend oneself.

Notice how the real first amendment is similar to the fake second amendment and vice versa. The second amendment, whether or not you like the principles behind is, is written like shiat.


Perhaps the Second is poorly drafted, but "the right of the People to keep and bear arms shall not be infringed" seems to be a fairly unequivocal statement of principle.
 
2013-02-27 05:42:27 PM
Nabb1:

Perhaps the Second is poorly drafted, but "the right of the People to keep and bear arms shall not be infringed" seems to be a fairly unequivocal statement of principle.

There's a first half too, you know.
 
2013-02-27 05:45:38 PM

Nabb1: Perhaps the Second is poorly drafted, but "the right of the People to keep and bear arms shall not be infringed" seems to be a fairly unequivocal statement of principle.


Yes, but its a principal which entirely revolves around the definition of "arms", which immediately raises the question of flintocks. So it's not a mere triviality.
 
vpb [TotalFark]
2013-02-27 05:50:12 PM

Nabb1: vpb: I thought the oddest part of his opinion on the Heller case was where he called the argument that the founding fathers were referring to flintlock muskets in the 2nd amendment "bordering on frivolous".

It is bordering on frivolous.  The point was to enable people to defend themselves and to assist in defense of the community with whatever weapons they needed to be effective.  Also, long rifles were expensive and vastly superior in range and accuracy to muskets.  England at one point tried to stop importation of long rifles from France into the colonies.  (France, BTW, made some really superb firearms in that era.)


Sure it is.  It would be just as idiotic to claim that it protects AK-47s and AR-15s as it would be to claim that it only apples to muskets but that's "original intent".  It referred to the hunting firearms of the the time.

Besides, muskets were far superior to rifled guns in rate of fire, which was far more important in 18th century warfare.  Rifled muzzle loaders before the Minie ball were very slow to load.
 
2013-02-27 05:50:35 PM

Nabb1: dr_blasto: It is still an interpretation of constitutional intent. that doesn't jibe with his clucking on originalism or whateverthefark he calls his shtick. It may be a ridiculous argument but that isn't related to the apparent about-face Scalia is willing to do to fit the Constitution to his ideals, regardless of compatibility.

I don't give a rat's ass whether Scalia is rigidly consistent with what he or anyone else professes his ideology to be.  I think the "musket" argument in regards to the Second Amendment is preposterous.  Do you want to debate whether the Second Amendment may be an anachronism in modern society?  That's fair game.  There's certainly an argument to be made for that.  But, trying to argue that there was some intent to limit people's ability to procure weapons underlying it is inaccurate, in my opinion.  Rifles were really, really expensive in that era, and highly valued on the frontier as a means not only of defense out in the wilderness, but often times of feeding one's family.


I'm not debating the Second Amendment and I don't disagree that the musket argument is fallacious.  I'm sticking to my criticism of Scalia and the decisions he's made as an Associate Justice. The gun argument can carry on or whatever, but that's not the point, at least it isn't my point. However, using Scalia's own arguments toward "textualism" vs "purposivism" and his claims that there are many reasonable restrictions, yet his own philosophy requires the reading of "the whole text" and intent is derived from, and only from, the meaning of that text. "Reasonable restrictions" doesn't seemingly comport with "shall not be infringed" unless one moves from textualism to purposivism.

That's all, really.
 
2013-02-27 05:53:01 PM
Another analysis. Link
 
2013-02-27 05:59:42 PM
I also note that Scalia's on statements on the  necessity of a rule/law indicate he firmly believes that it is the obligation of the legislature to determine whether it should exist. For him, it seems that whether Alabama is full of bigots or has become a multi-cultural party land of love is irrelevant.

From an interview:

FRANZEN: It's interesting that you mention that particular principle - "where the reason for the rule ceases so the rule should cease." That was the favorite adage of the first lawyer I worked for. He was a Harvard Law graduate and did a lot of constitutional litigation. I heard that rule cited every day. It's not mentioned anywhere in your book. Is it a canon of interpretation or would you say that maybe it should be included in the fallacies?

SCALIA: Well, it's obviously an adage that applies to the lawmaker, not to the law interpreter. A legislator should be aware of the fact that when a reason for a law is eliminated, the law itself should be abolished, or the law itself should be altered. And so should a judge be aware of that, if a judge is acting in a common law capacity and making the law. But it's rare in modern times that judges make the law, even in states where judges still have common law powers. Most of the law is codified, and the judge is almost always dealing with a text. And it certainly is not true with respect to a text - that when the reason for the text disappears, you can ignore the text, or rewrite the text, or distort the text. Nobody ever thought that was a principle applicable to textual interpretation; it was applicable to lawmaking, common law lawmaking.
 
2013-02-27 05:59:48 PM
Scalia isn't a textualist or an originalist. I wish people would stop calling him that. He'll use whatever justification he can make up to justify making a decision come out a certain way.

See Posner's review of Scalia's book on textualist and originalist judicial construction. Posner spends several pages pointing out where Scalia is purposely misstating precedent in order to justify his "originalist" approach.

http://www.newrepublic.com/article/magazine/books-and-arts/106441/sc al ia-garner-reading-the-law-textual-originalism
 
2013-02-27 05:59:58 PM

DamnYankees: Nabb1: Perhaps the Second is poorly drafted, but "the right of the People to keep and bear arms shall not be infringed" seems to be a fairly unequivocal statement of principle.

Yes, but its a principal which entirely revolves around the definition of "arms", which immediately raises the question of flintocks. So it's not a mere triviality.


I suspect the intent was to argue that guns have greatly exceeded the power that they had at the time the bill of rights was adopted, and beyond what the founders could have imagined.

But I have to concede it is pretty silly to argue that the founders meant to limit personal gun ownership to flintlocks when superior weapons already existed at the time.
 
2013-02-27 06:00:28 PM

dr_blasto: SCALIA: Well, it's obviously an adage that applies to the lawmaker, not to the law interpreter.


Amazing.
 
2013-02-27 06:01:28 PM

gilgigamesh: But I have to concede it is pretty silly to argue that the founders meant to limit personal gun ownership to flintlocks when superior weapons already existed at the time.


I don't know enough about gun technology to have any argument here. But I think it must be admitted that a textualist has no choice but to admit that the amendment is all about technology.
 
2013-02-27 06:04:05 PM
Just another activist judge legislating from the bench.
 
2013-02-27 06:05:23 PM
This is some really great discussion here, and I look forward to reading it in detail later.

On a basic level though, I can't get past the fact that Scalia's statement is just wrong.  For a guy who is supposed to be a constitutional expert and judge, he sure gets the basics wrong.
 
2013-02-27 06:08:08 PM

Dusk-You-n-Me: SCOTUSblog writeup.


Kennedy's comments are interesting for sure.  Frankly, I see some good merit to the idea that voting regulations (like section 5) should really be applied nationwide in order to be truly fair.
 
2013-02-27 06:11:35 PM
Strict constitutionalists only believe in the constitution they have in their heads... you can't actually expect them to read the real document.

The Constitution According to Conservatives:

Article 1: Only applies when the majority party is the GOP otherwise everything is unconstitutional
Article 2: Only applies when the president is republican UNLESS it has to do with impeachment that clause is only for democrats otherwise see above
Article 3: Scalia will let you know what this one means when he farking feels like it
Article 4: States rights
Article 5: Only applies to amendments protecting marriage and banning abortion
Article 6: Supremacy clause does not apply if black guy is president
Article 7: No one reads that shiat especially not Scalia

Amendment 1: You are free to be white, christian and watch fox news, all others are un-American
Amendment 2: You have the right to own a .50 Browning M2 machine gun because tyranny
Amendment 3: lolwut?
Amendment 4: Only applies to amendment 2, if you do drugs then fark you we'll search what we want
Amendment 5: Only applies to rich white guys testifying in front of congress
Amendment 6: Speedy/Fair trial only applies to rich white guys
Amendment 7: Ok I guess you proles can have this one too
Amendment 8: fark you we'll do what every want unless you're rich and white
Amendment 9: Limits the power of congress if and only if democrats are in the majority also some states rights
Amendment 10: Also also states rights
 
2013-02-27 06:12:18 PM

DamnYankees: gilgigamesh: But I have to concede it is pretty silly to argue that the founders meant to limit personal gun ownership to flintlocks when superior weapons already existed at the time.

I don't know enough about gun technology to have any argument here. But I think it must be admitted that a textualist has no choice but to admit that the amendment is all about technology.


I think so too.  But the point is that while rifles weren't standard issue, they certainly existed.  The concept of rifling for accuracy was pretty much known as long as guns existed; making them was just a difficult and time consuming process.  And for the stand in a line and shoot at each other from 20 paces style of warfare that was commonly practiced, muskets tended to work pretty well.

Rifles came into their own because the Americans realized that rather than playing along with the rules, they were better off hiding in the trees and ambushing Brits from a distance.

Anyway its more of a technical point.  The attorney probably was ignorant of the fact that American militias did, in fact, have rifles, and the framers clearly had them in mind when they drafted the bill of rights; so his larger point on technological advancement got lost in the mix.
 
2013-02-27 06:13:25 PM

Doktor_Zhivago: Amendment 8: fark you we'll do what every want

EVER WE WANT unless you're rich and white
 
2013-02-27 06:20:34 PM

Grand_Moff_Joseph: Dusk-You-n-Me: SCOTUSblog writeup.

Kennedy's comments are interesting for sure.  Frankly, I see some good merit to the idea that voting regulations (like section 5) should really be applied nationwide in order to be truly fair.


I agree.  Focusing on the south may lead to other states quietly slipping through their voter suppression efforts.

Michigan, for example, is about as far north as you can get. Michigan republicans are currently in the process of eliminating democracy for "urban" voters through "Emergency Manager" measures, and the 700,000 residents of Detroit are next.

http://www.politicususa.com/fontgate-fail-michigans-emergency-manage r- law-suspended-election.html
 
2013-02-27 06:23:25 PM

naughtyrev: I think Scalia is bitter that he never got a chance to own people.


He owns Thomas.
 
2013-02-27 06:24:08 PM

DamnYankees: gilgigamesh: But I have to concede it is pretty silly to argue that the founders meant to limit personal gun ownership to flintlocks when superior weapons already existed at the time.

I don't know enough about gun technology to have any argument here. But I think it must be admitted that a textualist has no choice but to admit that the amendment is all about technology.


No more so than the first is limited by it.
 
2013-02-27 06:25:14 PM

lilbjorn: naughtyrev: I think Scalia is bitter that he never got a chance to own people.

He owns Thomas.


Like Hall owns Oates.
 
2013-02-27 06:25:40 PM
He's an originalist, so that means only the original text is good enough for him.
 
2013-02-27 06:25:48 PM

IgG4: He is a passionate defender of what he imagines the constitution to be


Scalia is Area Man? ... That would explain quite a bit, actually.
 
2013-02-27 06:25:54 PM

netizencain: this guy is a respected judge in our country


Now THAT'S funny.  THAT is how you should troll people.
 
2013-02-27 06:26:39 PM

RexTalionis: Scalia isn't a textualist or an originalist. I wish people would stop calling him that. He'll use whatever justification he can make up to justify making a decision come out a certain way.

See Posner's review of Scalia's book on textualist and originalist judicial construction. Posner spends several pages pointing out where Scalia is purposely misstating precedent in order to justify his "originalist" approach.

http://www.newrepublic.com/article/magazine/books-and-arts/106441/sc al ia-garner-reading-the-law-textual-originalism


Or, his own words in this interview. Either way, there's no text in the Constitution that would prevent Congress from legislating voting rights, in fact, subby is correct that 14 says "Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." One should expect a textualist to honor that, Scalia, by his own statements, should not rule against any part.

/unless, of course, he's just another "activist Judge" and consistently "legislates from the bench"
 
2013-02-27 06:26:52 PM
I'm yet to meet or hear about a "Strict Constitutionalist" who believes that the Fifteenth counts.

Actually, they all seem to zone out and start drooling quietly after the First and Second.
 
2013-02-27 06:28:55 PM
Become naturally incapacitated already you dick.
 
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