Scalia on sodomy

[slickpoppa]

http://www.nypost.com/gossip/44524.htm

WHEN U.S. Supreme Court Justice Antonin Scalia (above) spoke Tuesday night at NYU's Vanderbilt Hall, "The room was packed with some 300 students and there were many protesters outside because of Scalia's vitriolic dissent last year in the case that overturned the Texas law against gay sex," our source reports. "One gay student asked whether government had any business enacting and enforcing laws against consensual sodomy. Following Scalia's answer, the student asked a follow-up: 'Do you sodomize your wife?' The audience was shocked, especially since Mrs. Scalia [Maureen] was in attendance. The justice replied that the question was unworthy of an answer."


For reference, here is the controversial portion of Scalia's disssent:

[ QUOTE ]
Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653, 116 S.Ct. 1620.
One of the most revealing statements in today's opinion is the Court's grim warning **2497 that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 2482. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that *603 culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal; that proposals to ban such "discrimination" under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H.R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such "discrimination" is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such "discrimination" is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000).
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts--or, for that matter, display any moral disapprobation of them--than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 2484; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made *604 by the people, and not imposed by a governing caste that knows best.


[/ QUOTE ]

He makes some good points, but the part about the law profession signing on to the "homosexual agenda" sounded like a rant more than anything else.

[Dead]

Scalia revealed his hand by making those homophobic comments.

If he wants to oppose striking down the state sodomy laws on constitutional grounds, then that's fine. He should have stuck to that. Instead, he took his opinion as an opportunity to lash out at what he feels are immoral things happening in her society. He had no business doing that.

[BCPVP]

[ QUOTE ]
Scalia revealed his hand by making those homophobic comments.

If he wants to oppose striking down the state sodomy laws on constitutional grounds, then that's fine. He should have stuck to that. Instead, he took his opinion as an opportunity to lash out at what he feels are immoral things happening in her society. He had no business doing that.

[/ QUOTE ]
What are you talking about? I don't see anything homophobic in his dissent. Perhaps you missed this part:
[ QUOTE ]
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts--or, for that matter, display any moral disapprobation of them--than I would forbid it to do so.

[/ QUOTE ]
Please highlight what was homophobic about his opinion.

[zaxx19]

Ya, im stuck rereading it like 3 times scouring it for anything remotely homophobic....

There isnt a thing.

[Dead]

Justice Antonin Scalia warned that the ruling would unleash a wave of challenges to state laws against "bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity."

[BCPVP]

And this is homophobic how...?

[Dead]

Scalia is an outright homophobe who in his dissent about striking down a Colorado Anti-Gay Legislative Act said, essentially, "There's nothing wrong with passing legislation that says that gays should be antagonized" (See Romer v. Evans).

[ripdog]

I don't see any "good points" in Scalia's dissent. He seems to be arguing that the majority of Americans don't agree with the lifestyle chosen by homosexuals, therefore it should be perfectly legal to discriminate against these individuals. Sounds like mob rule to me. I was under the impression that the purpose of the higher courts was to make sure that the minority is protected from such onslaughts.

His "nothing against homosexuals" line is laughable, and the question posed to him by the gay student was made to make a very clear point (and did). Is it anybodys business in which of his wife's orifice(s) that he chooses to insert his manhood? No, and he rightly refused to answer the question. But in doing so he exposed himself as the pathetic hypocrite that he and his ilk will always be.

Given the opportunity, I'd be willing to bet that my wife and I could break him down to an "it says so in the bible" defense eventually. We're getting pretty good at the good cop-bad cop routine when debating this with rabid homophobes.

[DVaut1]

[ QUOTE ]
Scalia revealed his hand by making those homophobic comments.

[/ QUOTE ]

I must echo was others have said here regarding Scalia and homophobia. I see nothing in Scalia's comments that would brand him homophobic.

I am equally distateful of arguments that call opponents of Zionism 'anti-semetic', or opponents of affirmative action 'racist'. Not all opposition deserves an epithet! This isn't to say that homophobes, anti-Semites and racists don't exist; it's only to claim that Scalia isn't a de facto homophobe for his dissent. Calling Scalia a homophobe is no different from calling a black person a n*****. It's meant to disqualify them from the debate before it even begins.

[ QUOTE ]
Scalia is an outright homophobe who in his dissent about striking down a Colorado Anti-Gay Legislative Act said, essentially, "There's nothing wrong with passing legislation that says that gays should be antagonized" (See Romer v. Evans).

[/ QUOTE ]

He NEVER wrote that. (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=U10179) If you believe he 'essentially' said that, that's subjective and requires further inquiry. But please read and reread his dissent in Romer. I think you'll be hard pressed to claim he even 'essentially' said that, but I'm willing to listen.

[Dead]

"There is a problem, however, which arises when criminal sanction of homosexuality is eliminated but moral and social disapprobation of homosexuality is meant to be retained. The Court cannot be unaware of that problem; it is evident in many cities of the country, and occasionally bubbles to the surface of the news, in heated political disputes over such matters as the introduction into local schools of books teaching that homosexuality is an optional and fully acceptable "alternate life style." The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, see Record, Exh. MMM, have high disposable income, see ibid.; App. 254 (affidavit of Prof. James Hunter), and of course care about homosexual-rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving [ ROMER v. EVANS, ___ U.S. ___ (1996) , 11] not merely a grudging social toleration, but full social acceptance, of homosexuality. See, e.g., Jacobs, The Rhetorical Construction of Rights: The Case of the Gay Rights Movement, 1969-1991, 72 Neb. L. Rev. 723, 724 (1993) ("[T]he task of gay rights proponents is to move the center of public discourse along a continuum from the rhetoric of disapprobation, to rhetoric of tolerance, and finally to affirmation")."

Good enough for you? it is clear that Scalia is a homophobe. And I never said that he wrote what I had said in quotes. I used the word "essentially". I was paraphrasing.

[PhatTBoll]

[ QUOTE ]
I don't see any "good points" in Scalia's dissent. He seems to be arguing that the majority of Americans don't agree with the lifestyle chosen by homosexuals, therefore it should be perfectly legal to discriminate against these individuals. Sounds like mob rule to me. I was under the impression that the purpose of the higher courts was to make sure that the minority is protected from such onslaughts.

His "nothing against homosexuals" line is laughable, and the question posed to him by the gay student was made to make a very clear point (and did). Is it anybodys business in which of his wife's orifice(s) that he chooses to insert his manhood? No, and he rightly refused to answer the question. But in doing so he exposed himself as the pathetic hypocrite that he and his ilk will always be.

Given the opportunity, I'd be willing to bet that my wife and I could break him down to an "it says so in the bible" defense eventually. We're getting pretty good at the good cop-bad cop routine when debating this with rabid homophobes.

[/ QUOTE ]

There is a staggering level of ignorance in this post.

Scalia is known as a strict textualist. He interprets the Constitution narrowly, choosing not to infer rights that are not explicitly stated in that document.

Rights not covered by the Constitution are left to the states by the 10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Not very ambiguous, is it? And so, laws regarding sexuality, domestic issues, small-scale crimes, etc. are left for the states to sort out. When the federal government gets involved in morality policy it tends to have horrible results. Prohibition and the drug war, for example.

Judges do not create law. They interpret laws. In the textualist view, the Texas law banning sodomy did not violate any Constitutional rights, and is thus a legitimate regulation of moral standards left to Texas by the 10th Amendment. To recognize a right to commit sodomy would be to read into the Constitution a right that is simply not there. This sort of thing is anathema to textualists.

If you want to debate the merits of textualism as an approach to Constitutional theory, that's fine. But if you honestly think Scalia is merely a religious fanatic pushing his agenda then you are plain wrong. Read his comments on the Holy Trinity case, specifically the "Christian nation" rationale found in the majority opinion. You might be surprised.

[Dead]

Maybe you can explain to me how Scalia's vote in Bush v Gore is part of his strict constructionist philosophy? Whatever happened to states' rights? /images/graemlins/ooo.gif

You are being foolish if you don't think Scalia takes politics into account in his decisions.

[PhatTBoll]

[ QUOTE ]
Maybe you can explain to me how Scalia's vote in Bush v Gore is part of his strict constructionist philosophy? Whatever happened to states' rights? /images/graemlins/ooo.gif

You are being foolish if you don't think Scalia takes politics into account in his decisions.

[/ QUOTE ]

Florida judges tried to ignore Florida law, and the Supreme Court wouldn't let them.

Is that really the best you can do?

[PhatTBoll]

[ QUOTE ]
[ QUOTE ]
Maybe you can explain to me how Scalia's vote in Bush v Gore is part of his strict constructionist philosophy? Whatever happened to states' rights? /images/graemlins/ooo.gif

You are being foolish if you don't think Scalia takes politics into account in his decisions.

[/ QUOTE ]

Florida judges tried to ignore Florida law, and the Supreme Court wouldn't let them.

Is that really the best you can do?

[/ QUOTE ]

Besides, let's not forget the context of Bush v. Gore. It was a Federal election! Not policy based on moral beliefs. Huge difference.

[jaxmike]

[ QUOTE ]
Scalia revealed his hand by making those homophobic comments.

[/ QUOTE ]

Here we go. An assault on Scalia without ANY BASIS IN FACT!

[ QUOTE ]

If he wants to oppose striking down the state sodomy laws on constitutional grounds, then that's fine. He should have stuck to that. Instead, he took his opinion as an opportunity to lash out at what he feels are immoral things happening in her society. He had no business doing that.

[/ QUOTE ]

The only lashing out that he did was at the COURTS THEMSELVES. His whole point there was that the courts DO NOT have the right to legislate from the bench. In a democracy/representative republic its up to the LEGISLATURE to enact laws, not the JUDICIAL.

[Dead]

[ QUOTE ]
[ QUOTE ]
Maybe you can explain to me how Scalia's vote in Bush v Gore is part of his strict constructionist philosophy? Whatever happened to states' rights? /images/graemlins/ooo.gif

You are being foolish if you don't think Scalia takes politics into account in his decisions.

[/ QUOTE ]

Florida judges tried to ignore Florida law, and the Supreme Court wouldn't let them.

Is that really the best you can do?

[/ QUOTE ]

The equal protection argument was the most bullshit argument I had ever heard.

Is that the best that YOU can do?

[jaxmike]

[ QUOTE ]
Ya, im stuck rereading it like 3 times scouring it for anything remotely homophobic....

There isnt a thing.

[/ QUOTE ]

Dead is apparently capable of seeing things that are not there...

[Dead]

[ QUOTE ]
[ QUOTE ]
Ya, im stuck rereading it like 3 times scouring it for anything remotely homophobic....

There isnt a thing.

[/ QUOTE ]

Dead is apparently capable of seeing things that are not there...

[/ QUOTE ]

Yes. Right now, I am seeing dumb people.

[PhatTBoll]

[ QUOTE ]
[ QUOTE ]
[ QUOTE ]
Maybe you can explain to me how Scalia's vote in Bush v Gore is part of his strict constructionist philosophy? Whatever happened to states' rights? /images/graemlins/ooo.gif

You are being foolish if you don't think Scalia takes politics into account in his decisions.

[/ QUOTE ]

Florida judges tried to ignore Florida law, and the Supreme Court wouldn't let them.

Is that really the best you can do?

[/ QUOTE ]

The equal protection argument was the most bullshit argument I had ever heard.

Is that the best that YOU can do?

[/ QUOTE ]

A bullshit argument that 5 justices of the Supreme Court signed their names to. If you are going to brush it aside as bullshit, perhaps you should give some reasons as to why.

[jaxmike]

Mirrors are cool aren't they?

[Dead]

[ QUOTE ]


A bullshit argument that 5 justices of the Supreme Court signed their names to.

[/ QUOTE ]

Supreme Court voted 7 to 2 against Scott in the Dred Scott case. Gotta do better than that.

[PhatTBoll]

[ QUOTE ]
[ QUOTE ]


A bullshit argument that 5 justices of the Supreme Court signed their names to.

[/ QUOTE ]

Supreme Court voted 7 to 2 against Scott in the Dred Scott case. Gotta do better than that.

[/ QUOTE ]

There are plenty of reasons for why Dred Scott was misguided. If the court's argument in Bush v. Gore was misguided, you should be able to make a better argument than "it's bullshit". This is exactly the type of thing you get mad at jaxmike and zaxx for doing.

[kurto]

There are state laws prohibiting masturbation?

I remember a news story a few years ago about a state's law (it might have been Alabama, but I'm not certain) that limited the number of vibrators a woman could own. I believe it made the news because a woman had gone over the limit and was ticketed or some nonsense.

[Dead]

[ QUOTE ]
[ QUOTE ]
[ QUOTE ]


A bullshit argument that 5 justices of the Supreme Court signed their names to.

[/ QUOTE ]

Supreme Court voted 7 to 2 against Scott in the Dred Scott case. Gotta do better than that.

[/ QUOTE ]

There are plenty of reasons for why Dred Scott was misguided. If the court's argument in Bush v. Gore was misguided, you should be able to make a better argument than "it's bullshit". This is exactly the type of thing you get mad at jaxmike and zaxx for doing.

[/ QUOTE ]

The Florida Supreme Court had done everything it could do to ensure equal treatment of both parties. Requiring all ballots to be treated in the same fashion would require a uniform federal standard for counting votes, something that had never been established before.

Ending the recounts was not an equitable way to settle the dispute.

The Florida Supreme Court is allowed BROAD powers of review. Bush's lawyers didn't prove that allowing recounts would produce less fair results.

It is also interesting that the Supreme Court did not examine the documented cases of voters who had their federal voting rights violated by Republicans and assorted pigs. This, imo, was a much bigger issue than the arguments being advanced by Mr. Bush and his cronies.

[jaxmike]

[ QUOTE ]
Maybe you can explain to me how Scalia's vote in Bush v Gore is part of his strict constructionist philosophy? Whatever happened to states' rights? /images/graemlins/ooo.gif

You are being foolish if you don't think Scalia takes politics into account in his decisions.

[/ QUOTE ]

The Florida Supreme Court decided to CIRCUMVENT state law, and EXTEND the deadline beyond what state law allowed. They had NO LEGAL BASIS to do this. The rights of the STATE WERE UPHELD, the legislation of the Florida Supreme Court was reversed.

[jaxmike]

[ QUOTE ]
[ QUOTE ]
[ QUOTE ]
Maybe you can explain to me how Scalia's vote in Bush v Gore is part of his strict constructionist philosophy? Whatever happened to states' rights? /images/graemlins/ooo.gif

You are being foolish if you don't think Scalia takes politics into account in his decisions.

[/ QUOTE ]

Florida judges tried to ignore Florida law, and the Supreme Court wouldn't let them.

Is that really the best you can do?

[/ QUOTE ]

The equal protection argument was the most bullshit argument I had ever heard.

Is that the best that YOU can do?

[/ QUOTE ]

Not as bad as finding a right to kill an unborn baby just because you don't want it.

[PhatTBoll]

broad powers of review != the ability to utterly ignore state election law

Besides, how outlandish is it to expect that selective, massive recounts in heavily Democratic areas will favor Democrats?

[jaxmike]

[ QUOTE ]
[ QUOTE ]


A bullshit argument that 5 justices of the Supreme Court signed their names to.

[/ QUOTE ]

Supreme Court voted 7 to 2 against Scott in the Dred Scott case. Gotta do better than that.

[/ QUOTE ]


Straight from the article posted...
[ QUOTE ]

It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 2484; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made *604 by the people, and not imposed by a governing caste that knows best.


[/ QUOTE ]

[jaxmike]

[ QUOTE ]
[ QUOTE ]
[ QUOTE ]
[ QUOTE ]


A bullshit argument that 5 justices of the Supreme Court signed their names to.

[/ QUOTE ]

Supreme Court voted 7 to 2 against Scott in the Dred Scott case. Gotta do better than that.

[/ QUOTE ]

There are plenty of reasons for why Dred Scott was misguided. If the court's argument in Bush v. Gore was misguided, you should be able to make a better argument than "it's bullshit". This is exactly the type of thing you get mad at jaxmike and zaxx for doing.

[/ QUOTE ]

The Florida Supreme Court had done everything it could do to ensure equal treatment of both parties. Requiring all ballots to be treated in the same fashion would require a uniform federal standard for counting votes, something that had never been established before.

Ending the recounts was not an equitable way to settle the dispute.

The Florida Supreme Court is allowed BROAD powers of review. Bush's lawyers didn't prove that allowing recounts would produce less fair results.

It is also interesting that the Supreme Court did not examine the documented cases of voters who had their federal voting rights violated by Republicans and assorted pigs. This, imo, was a much bigger issue than the arguments being advanced by Mr. Bush and his cronies.

[/ QUOTE ]

I will make a baseless allegation right back at you. 3x the number of Republicans were disenfranchised than Democrats. Because you cannot prove the lunacy that you spew, I will not prove mine either.

Your post here is nonsense.

[Dead]

[ QUOTE ]
the legislation of the Florida Supreme Court was reversed.

[/ QUOTE ]

What?

[jaxmike]

[ QUOTE ]
[ QUOTE ]
the legislation of the Florida Supreme Court was reversed.

[/ QUOTE ]

What?

[/ QUOTE ]

I guess I have to spell it out for you...

The SCOF decided that the deadline for election certification should be extended. State law had a specific date assigned, they LEGISLATED that the new deadline would be a later date.

They had no legal basis to do this.

Thus, then the SCOTUS reversed their decision, they overturned the legislation of the SCOF.

That's just part of the decision, I understand, but a not so insignificant part of it.

[Dead]

Courts don't make legislation. They interpret it.

[jaxmike]

[ QUOTE ]
Courts don't make legislation. They interpret it.

[/ QUOTE ]

That's what they are supposed to do. However, many leftist judges are legislating from the bench now... If you cannot understand who changing a date specified in state law is legislation, I pitty you. There is NO interpretation needed when the date is CLEARLY given.

By your assinine logic, March 12 is really April 3.

[DVaut1]

[ QUOTE ]
Good enough for you? it is clear that Scalia is a homophobe.

[/ QUOTE ]

No, it's not good enough for me. It does not prove he is homophobic. He's merely defending the right of majorities to have their will enacted. What you're arguing for (and I personally agree with!) is that constitutional interpretation needs a standard of substantive due process; that is, even if rights aren't explicitly expressed in the Constitution, they still must be considered because they are implicit to ordered liberty.

Scalia disagrees with this; there is an enormous distinction between Scalia's disrespect of substantive due process and homophobia. But let's go over what Scalia wrote anyway, just in case there are some lingering doubts:

[ QUOTE ]
There is a problem, however, which arises when criminal sanction of homosexuality is eliminated but moral and social disapprobation of homosexuality is meant to be retained.

[/ QUOTE ]

This isn't fear or hatred of homophobia. He's merely claiming that majorities have the right to condemn homosexuality if they so choose. HE IS NOT CONDEMNING HOMOSEXUALITY HIMSELF! You do not need to be racist to claim that the KKK has a right to have a parade. You do not need to be a homophobe to claim that majorities have a right to condemn homosexuality AND even codify such a condemnation, SO LONG AS IT DOES NOT VIOLATE THE CONSTITUTION! If you believe such laws do violate the Constitution (and I do!), that's perfectly legitimate. But it is not legitimate to call Scalia a homophobe because he disagrees.

[ QUOTE ]
The Court cannot be unaware of that problem; it is evident in many cities of the country, and occasionally bubbles to the surface of the news, in heated political disputes over such matters as the introduction into local schools of books teaching that homosexuality is an optional and fully acceptable "alternate life style."

[/ QUOTE ]

If, for instance, a majority of parents in a school district object to having homosexuality presented in a textbook as an alternate lifestyle, they have the right to lobby their politicians to not use such textbooks. Defense of this is not homophobia. It's a respect for the will of the majority.


[ QUOTE ]
The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, have high disposable income, and of course care about homosexual-rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality. ("[T]he task of gay rights proponents is to move the center of public discourse along a continuum from the rhetoric of disapprobation, to rhetoric of tolerance, and finally to affirmation")."

[/ QUOTE ]

In other words, if homosexuals believe laws are discriminatory, and these laws do not violate the Constitution, they should convince their peers of such and work to amend such laws. There is nothing here which demonstrates Scalia has fear or contempt of gays/lesbians.

[ QUOTE ]
And I never said that he wrote what I had said in quotes. I used the word "essentially". I was paraphrasing.

[/ QUOTE ]

And your paraphrase did not corrolate to what Scalia actually wrote.

[jokerswild]

Someone in the Great Leader's White House is planting gays in the press room under false names. Someone in the Secret Service permits it, too.

Has to be an executive order to permit it.

[andyfox]

Many rightist judges are "legislating" from the bench now too.

Scalia considers himself an "originalist" and a "literalist." That is, the plain meaning of the words of the Constitution is what he goes by. And what they meant when they were composed. So, for example, he says capital punishment is fine, it is not cruel and unusual punishment because it was the penalty (in fact, the only penalty) for a felony at the time the Constitution was drafted.

And he does not care about the debates at the Constitutional convention. He derives the meaning of the Constitution from his understanding of the plain meaning of the words.

MMMMMM and I had a discussion about the efficacy of such an approach on this forum some time ago.

[andyfox]

There was a good article in the New Yorker on Scalia a few weeks back, couldn't find a link, but here is one that relates to it:

http://www.newyorker.com/online/content/index.ssf?050328on_onlineonly01

[Dead]

From the article:

And it’s true that he sometimes comes to conclusions that don’t seem to comport with his own political or social beliefs. He likes to cite his vote in a flag-burning case, for instance, when he voted with liberals on the Court to protect flag desecration as symbolic political speech. “Scalia did not like to vote that way,” he said in a speech at the University of Michigan. “He does not like sandal-wearing, bearded weirdos who go around burning flags.”

Priceless. That part made me laugh hard.

[kurto]

"I will make a ANOTHER baseless allegation LIKE I ALWAYS DO right back at you." Jaxmike edited for accuracy.

"3x the number of Republicans were disenfranchised than Democrats. Because you cannot prove the lunacy that you spew, I will not prove mine either." I don't get it. How is this different then any other post he's ever made? /images/graemlins/smile.gif

"Your post here is nonsense." That's what neocoms do. They post nonsense. Sometimes, they make up words, that's how nonsensical they are!

Jax's God have mercy on their soul.

[Dead]

I assume you mean neocons. Unless you think that Jaxmike is a neo-communist.

[Dead]

I assume you mean neocons. Unless you think that Jaxmike is a neo-communist. Or are you referring to us as neo-coms? /images/graemlins/tongue.gif

[PhatTBoll]

[ QUOTE ]
Scalia considers himself an "originalist" and a "literalist." That is, the plain meaning of the words of the Constitution is what he goes by. And what they meant when they were composed. So, for example, he says capital punishment is fine, it is not cruel and unusual punishment because it was the penalty (in fact, the only penalty) for a felony at the time the Constitution was drafted.

[/ QUOTE ]

Andy,

What you are describing sounds a lot like the original understanding theory proposed by Robert Bork, et al. Scalia does not subscribe to this theory of interpretation.

[DVaut1]

[ QUOTE ]
He seems to be arguing that the majority of Americans don't agree with the lifestyle chosen by homosexuals, therefore it should be perfectly legal to discriminate against these individuals.

[/ QUOTE ]

More or less, yes. A majority of Americans disagree with the lifestyle chosen by polygamists, hence laws which ban polygamy. The burden is to prove such laws are unconstitutional.

[ QUOTE ]
Sounds like mob rule to me.

[/ QUOTE ]

Sometimes mobs rule in a democracy.

[ QUOTE ]
I was under the impression that the purpose of the higher courts was to make sure that the minority is protected from such onslaughts.

[/ QUOTE ]

IF, and ONLY IF, the minority's rights are protected by the Constitution. Minorities are subjected to 'onslaughts' all the time! Drug dealers, Jehovah's Witnesses, pornographers, etc. are just some examples of minorities that have burdens placed on them; burdens that the majorities have willed should be placed, and burdens that the SCOTUS has upheld on numerous occasions. If these burdens violate the Constitution, then the minority is entilted protection.

[ QUOTE ]
Given the opportunity, I'd be willing to bet that my wife and I could break him down to an "it says so in the bible" defense eventually.

[/ QUOTE ]

This is a serious question. If a majority of Supreme Court Justices couldn't persuade Scalia, do you honestly think you and your wife possess enough knowledge of jurisprudence to persuade Scalia he's wrong? Did you read Lawrence v Texas? Scalia isn't dissenting because "it says so in the bible". Do you truly believe you and your wife are so skillful in philosophical and legal debate that you could get Scalia to 'break down'? I have a difficult time picturing Scalia (a graduate of Harvard law and former editor of the Harvard Law Review, a Sheldon fellow, a professor of law at the University of Chicago, Georgetown, and Stanford, not to mention a SUPREME COURT JUSTICE) kowtowing to the COMBINED powers of debate of both you and your wife. This sounds like ridiculous hubris run amok.

[Dead]

[ QUOTE ]
[ QUOTE ]
Scalia considers himself an "originalist" and a "literalist." That is, the plain meaning of the words of the Constitution is what he goes by. And what they meant when they were composed. So, for example, he says capital punishment is fine, it is not cruel and unusual punishment because it was the penalty (in fact, the only penalty) for a felony at the time the Constitution was drafted.

[/ QUOTE ]

Andy,

What you are describing sounds a lot like the original understanding theory proposed by Robert Bork, et al. Scalia does not subscribe to this theory of interpretation.

[/ QUOTE ]

You are WRONG. Scalia DOES consider himself an originalist. He tries to think about what the Founding Fathers would have done in his case, before every decision.

[ripdog]

[ QUOTE ]
There is a staggering level of ignorance in this post.

[/ QUOTE ]

I don't think so. I feel that he lets his political and religious leanings pollute his thinking. If you believe that he is immune to allowing his world view to cloud his judgement, then maybe the staggering level of ignorance lies with you.

Also, you claim that Scalia is known as a strict textualist when it comes to the constitution. I wonder if he interprets the Bible in a similar manner. Someone who reads the Bible and does not try to inerpret the intention of the passage is thought ot be a fanatic. Following the letter of the law while ignoring the spirit of the law is not something that should be applauded.

Then you argue that the states are there to pick up where the constitution leaves off. Unless the neocons diagree with the states leanings, in which case they meddle incessantly.

But my only point was that it's really none of anybody's business who's anus gets penetrated and where that penetration takes place, and it's up to the higher courts to make sure that the states don't fill the holes in the constitution with laws that discriminate against one group of people.

[kurto]

I was quoting a jaxism. I know that neocom is just a word that jax made up. I was mocking his ironic behaviour.

"Unless you think that Jaxmike is a neo-communist." Frankly, I don't really care to classify him politically. I think he's just a troll and a parrot.

I used to frequent another political board... there were some really bright Republicans/Conservatives who you could have some interesting discussions about current issues. People who could make thoughtful arguments to support their well thought out beliefs. Then there were many, many people like Jax. Even others from the right would often ask the 'jax's to stop because they were hurting their side.

Like having William F. Buckley and Rush Limbaugh asked to debate... Buckley would think Rush as foolish as everyone on the left.

I actually left the forum because the "Jaxes" grew in numbers driving away the members from the right who actually wanted to discuss issues in a civil way.

The only fun of the board because mocking the Jax-trolls. Which was fun sport, but not too productive.

[BCPVP]

So Dead, what happened to your allegation of Scalia saying homophobic things...? /images/graemlins/smirk.gif

It would seem that that argument isn't holding much...

[PhatTBoll]

[ QUOTE ]
[ QUOTE ]
[ QUOTE ]
Scalia considers himself an "originalist" and a "literalist." That is, the plain meaning of the words of the Constitution is what he goes by. And what they meant when they were composed. So, for example, he says capital punishment is fine, it is not cruel and unusual punishment because it was the penalty (in fact, the only penalty) for a felony at the time the Constitution was drafted.

[/ QUOTE ]

Andy,

What you are describing sounds a lot like the original understanding theory proposed by Robert Bork, et al. Scalia does not subscribe to this theory of interpretation.

[/ QUOTE ]

You are WRONG. Scalia DOES consider himself an originalist. He tries to think about what the Founding Fathers would have done in his case, before every decision.

[/ QUOTE ]

Good lord. Scalia considers himself a textualist, which means that the plain meaning of the statutory language governs, unless it would lead to an absurd result.
On the other hand, Bork's theory of original understanding is based on what the general public would have understood the statute to mean when it was enacted. Scalia's counter to this is that nobody knows what the public might have understood in the 18th Century (or whenever) and that the words should be given reasonable meanings according to their current usage. Legislative intent is irrelevant. What the founding fathers would have done is unimportant.

Dead, here is some homework for you. Here are some very important recent cases concerning statutory interpretation in which Scalia filed an opinion:

Green v. Bock Laundry, 490 U.S. 504
Chisom v. Roemer, 501 U.S. 380
West Virginia University Hospitals v. Casey, 499 U.S. 83


Please show me in any of these opinions where he refers to what the founding fathers would have done.

[ripdog]

[ QUOTE ]
This is a serious question. If a majority of Supreme Court Justices couldn't persuade Scalia, do you honestly think you and your wife possess enough knowledge of jurisprudence to persuade Scalia he's wrong? Did you read Lawrence v Texas? Scalia isn't dissenting because "it says so in the bible". Do you truly believe you and your wife are so skillful in philosophical and legal debate that you could get Scalia to 'break down'? I have a difficult time picturing Scalia (a graduate of Harvard law and former editor of the Harvard Law Review, a Sheldon fellow, a professor of law at the University of Chicago, Georgetown, and Stanford, not to mention a SUPREME COURT JUSTICE) kowtowing to the COMBINED powers of debate of both you and your wife. This sounds like ridiculous hubris run amok.

[/ QUOTE ]

I didn't say anything about convincing him that his views are disgusting and immoral, just that we could eventually break him down to that weak and indefensible argument. I'm basing it on the number of times we have been able to argue the case of homosexual rights with right wing homophobes and they always wind up in the end clinging to "because the bible tells me so". We've only been able to do this with several successful attorneys so far, but I would welcome the chance to argue it with a judge. Why am I convinced that we could make this happen? Because his position is indefensible and this always comes out in the end and is easy to drive into the ground.

In each of these situations, we did not bring the topic up.

[Cyrus]

[ QUOTE ]
Laws regarding sexuality, domestic issues, small-scale crimes, etc. are left for the states to sort out.

[/ QUOTE ]

How about school buses and school classes?

The federal government in the 1960s enforced school desegregation against (some) states' laws -- and wishes.

Despite the fact that the great state of Mississippi, in its alleged majority, wanted them uppity niggers to stay in their place, the United States government thought otherwise.

[andyfox]

"Scalia's counter to this is that nobody knows what the public might have understood in the 18th Century (or whenever) and that the words should be given reasonable meanings according to their current usage."

By "current," do you mean today's usage, or the usage at the time they were written? Scalia, as I understand it, is an opponent of the concept of a "living" Constitution, wherein the words "change" meaning according to changing customs.

[PhatTBoll]

[ QUOTE ]
I don't think so. I feel that he lets his political and religious leanings pollute his thinking. If you believe that he is immune to allowing his world view to cloud his judgement, then maybe the staggering level of ignorance lies with you.

[/ QUOTE ]

Read his thoughts on Holy Trinity.

[ QUOTE ]
Also, you claim that Scalia is known as a strict textualist when it comes to the constitution. I wonder if he interprets the Bible in a similar manner. Someone who reads the Bible and does not try to inerpret the intention of the passage is thought ot be a fanatic. Following the letter of the law while ignoring the spirit of the law is not something that should be applauded.

[/ QUOTE ]

He would agree with you wholeheartedly.

Straight out of my Legislation textbook, describing Scalia's thoughts in A Matter of Interpretation:

The apparent plain meaning of a statutory text must be the alpha and the omega in a judge's interpretation of a statute. The apparent plain meaning is that which an ordinary speaker of the English language -- twin sibling to the common law's reasonable person -- would draw from the statutory text. That is what textualism is. What it is not, according to Justice Scalia, is either "strict constructionism," which gives statutory words their stingiest ambit, nor "nihilism," which reads words to mean anything and everything. "A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means."

[ QUOTE ]
Then you argue that the states are there to pick up where the constitution leaves off. Unless the neocons diagree with the states leanings, in which case they meddle incessantly.

[/ QUOTE ]

What does this have to do with anything? Scalia is no neocon, and neither am I.

[ QUOTE ]
But my only point was that it's really none of anybody's business who's anus gets penetrated and where that penetration takes place, and it's up to the higher courts to make sure that the states don't fill the holes in the constitution with laws that discriminate against one group of people.

[/ QUOTE ]

I agree with the first part of this, but disagree with the second part. It is not the federal court's job to counteract the will of state legislatures unless they have acted unconstitutionally.

[DVaut1]

[ QUOTE ]
I didn't say anything about convincing him that his views are disgusting and immoral, just that we could eventually break him down to that weak and indefensible argument.

[/ QUOTE ]

Please, please, please read Lawrence v Texas. He never made an appeal to Biblical authority.

[ QUOTE ]
I'm basing it on the number of times we have been able to argue the case of homosexual rights with right wing homophobes and they always wind up in the end clinging to "because the bible tells me so".

[/ QUOTE ]

This has nothing to do with Scalia.

[ QUOTE ]
We've only been able to do this with several successful attorneys so far,

[/ QUOTE ]

You must know some awfully stupid attorneys.

[ QUOTE ]
Why am I convinced that we could make this happen? Because his position is indefensible and this always comes out in the end and is easy to drive into the ground.

[/ QUOTE ]

What position of his is indefensible? The "because it says so in the Bible" argument which Scalia never made? You and your wife must be amazing straw man dismantlers.

[PhatTBoll]

[ QUOTE ]
[ QUOTE ]
Laws regarding sexuality, domestic issues, small-scale crimes, etc. are left for the states to sort out.

[/ QUOTE ]

How about school buses and school classes?

The federal government in the 1960s enforced school desegregation against (some) states' laws -- and wishes.

Despite the fact that the great state of Mississippi, in its alleged majority, wanted them uppity niggers to stay in their place, the United States government thought otherwise.

[/ QUOTE ]

The federal government was well within its rights to interfere, due to the legitimate government interest involved. Public schools involve federal funds; no problem for federal courts to overrule the states.

[andyfox]

Speaking on Feb. 23, 2001 at a Princeton University conferenceon James Madison, Scalia explained that he, like Madison, interprets the Constitution according to the "common sense" meaning and definition of the document's words at the time they were written. An opposite approach, Scalia suggested from that applied by Justices who believe the Constitution "changes from age to age in order to meet the needs of a changing society."

Scalia criticized the second approach, saying that it too often results in crafting subjective interpretations of the Constitution to address issues that could and should be handled by Congress.

Calling his view of the Constitution an "originalist" view, Scalia conceded it often places him in a position of supporting laws that do not seem to make sense.

"It may well be stupid, but if it's stupid, pass a law!" he said. "Don't think the originalist interpretation constrains you. To the contrary. My Constitution is a very flexible Constitution. You want a right to abortion? Create it the way all rights are created in a democracy, pass a law. The death penalty? Pass a law. That's flexibility."

Scalia suggested that supporters of the "living Constitution" view, allowing for flexible interpretations molded to meet the changing times, really wanted "rigidity."

"They want the whole country to do it their way from coast to coast. They want to drive one issue after another off the stage of political debate … Every time you insert into the Constitution - by speculation - new rights that aren't really there you are impoverishing democracy. You are pushing one issue after another off the democratic stage."

[PhatTBoll]

[ QUOTE ]
"Scalia's counter to this is that nobody knows what the public might have understood in the 18th Century (or whenever) and that the words should be given reasonable meanings according to their current usage."

By "current," do you mean today's usage, or the usage at the time they were written? Scalia, as I understand it, is an opponent of the concept of a "living" Constitution, wherein the words "change" meaning according to changing customs.

[/ QUOTE ]

The plain meaning of a statute is what an ordinary English speaker would understand the text to mean, according to Scalia. I don't think he is opposed to words undergoing changes in meaning, rather he is opposed to judges creating new meanings for them.

Edit: Andy, do you have a link for that article?

[Dead]

[ QUOTE ]
[ QUOTE ]
[ QUOTE ]
Laws regarding sexuality, domestic issues, small-scale crimes, etc. are left for the states to sort out.

[/ QUOTE ]

How about school buses and school classes?

The federal government in the 1960s enforced school desegregation against (some) states' laws -- and wishes.

Despite the fact that the great state of Mississippi, in its alleged majority, wanted them uppity niggers to stay in their place, the United States government thought otherwise.

[/ QUOTE ]

The federal government was well within its rights to interfere, due to the legitimate government interest involved. Public schools involve federal funds; no problem for federal courts to overrule the states.

[/ QUOTE ]

Point to which federal funds went to public schools in Alabama and Missippi.

There wasn't a Dept of Ed yet, and we were spending hardly anything on it at the time.

[PhatTBoll]

[ QUOTE ]
[ QUOTE ]
[ QUOTE ]
[ QUOTE ]
Laws regarding sexuality, domestic issues, small-scale crimes, etc. are left for the states to sort out.

[/ QUOTE ]

How about school buses and school classes?

The federal government in the 1960s enforced school desegregation against (some) states' laws -- and wishes.

Despite the fact that the great state of Mississippi, in its alleged majority, wanted them uppity niggers to stay in their place, the United States government thought otherwise.

[/ QUOTE ]

The federal government was well within its rights to interfere, due to the legitimate government interest involved. Public schools involve federal funds; no problem for federal courts to overrule the states.

[/ QUOTE ]

Point to which federal funds went to public schools in Alabama and Missippi.

There wasn't a Dept of Ed yet, and we were spending hardly anything on it at the time.

[/ QUOTE ]

Commerce clause then. Either way there was a pretty obvious handle to get jurisdiction. Admittedly I don't know a whole lot about school desegregation.

[andyfox]

Who determines, though, the change in meaning that has occurred? What's reasonable to Scalia might not be reasonable to me and vice versa. According to Scalia himself, he is interested in what the words meant at the time they were written. And yet he has also said he's not interested in the legislative history of how the words came to be written as they were. These two things seem to contradict one another.

[Dead]

[ QUOTE ]
[ QUOTE ]
[ QUOTE ]
[ QUOTE ]
[ QUOTE ]
Laws regarding sexuality, domestic issues, small-scale crimes, etc. are left for the states to sort out.

[/ QUOTE ]

How about school buses and school classes?

The federal government in the 1960s enforced school desegregation against (some) states' laws -- and wishes.

Despite the fact that the great state of Mississippi, in its alleged majority, wanted them uppity niggers to stay in their place, the United States government thought otherwise.

[/ QUOTE ]

The federal government was well within its rights to interfere, due to the legitimate government interest involved. Public schools involve federal funds; no problem for federal courts to overrule the states.

[/ QUOTE ]

Point to which federal funds went to public schools in Alabama and Missippi.

There wasn't a Dept of Ed yet, and we were spending hardly anything on it at the time.

[/ QUOTE ]

Commerce clause then. Either way there was a pretty obvious handle to get jurisdiction. Admittedly I don't know a whole lot about school desegregation.

[/ QUOTE ]

The commerce clause has been used as a justification for many federal programs. Explain why a conservative Republican should support it in this case.

[PhatTBoll]

[ QUOTE ]
Who determines, though, the change in meaning that has occurred? What's reasonable to Scalia might not be reasonable to me and vice versa. According to Scalia himself, he is interested in what the words meant at the time they were written. And yet he has also said he's not interested in the legislative history of how the words came to be written as they were. These two things seem to contradict one another.

[/ QUOTE ]

This is what many point to as the critical flaw in his reasoning, and I can't give a simple answer. He repudiates legislative history because he feels that judges use it as an ex post facto method of justifying their decisions. They shape legislative history arguments to take the meaning that they think it should take, rather than look at it objectively. The plain meaning of words on paper is much less susceptible to this manipulation.

I should note that some people in this thread (not you) seem to think that I completely agree with Scalia's theories. I don't. I don't even pretend to understand it particularly well. I just think that when you criticize the theories of a preeminent legal scholar and respected SCOTUS justice, you should at least have a general understanding of what those theories are.

[PhatTBoll]

[ QUOTE ]
[ QUOTE ]
[ QUOTE ]
[ QUOTE ]
[ QUOTE ]
[ QUOTE ]
Laws regarding sexuality, domestic issues, small-scale crimes, etc. are left for the states to sort out.

[/ QUOTE ]

How about school buses and school classes?

The federal government in the 1960s enforced school desegregation against (some) states' laws -- and wishes.

Despite the fact that the great state of Mississippi, in its alleged majority, wanted them uppity niggers to stay in their place, the United States government thought otherwise.

[/ QUOTE ]

The federal government was well within its rights to interfere, due to the legitimate government interest involved. Public schools involve federal funds; no problem for federal courts to overrule the states.

[/ QUOTE ]

Point to which federal funds went to public schools in Alabama and Missippi.

There wasn't a Dept of Ed yet, and we were spending hardly anything on it at the time.

[/ QUOTE ]

Commerce clause then. Either way there was a pretty obvious handle to get jurisdiction. Admittedly I don't know a whole lot about school desegregation.

[/ QUOTE ]

The commerce clause has been used as a justification for many federal programs. Explain why a conservative Republican should support it in this case.

[/ QUOTE ]

Because "separate but equal" was found to be in violation of the 14th Amendment.

[PhatTBoll]

After some reflection and poking around, it appears that Bork and Scalia are intellectual peers. I concede the point.

[Dead]

Gee.

[PhatTBoll]

[ QUOTE ]
Gee.

[/ QUOTE ]

I'm still waiting for your analysis of Scalia's "founding fathers" arguments

[andyfox]

Good points.

Scalia, I would think, claims that his decisions are not in and of themselves "conservative," but that his rigorous logic leads where it leads, let the chips fall where they may. But it just so happens those chips fall on the right. And it just so happens Scalia is very conservative. So it occurs to me that Scalia may have constructed his "originalist" theory to justify his predispositions, just as he accuses his opponents of doing. He's just a much smarter guy and can disguise his ex-post facto justifications under the guise of rigorous originalism.

And, even then, he doesn't follow his own logic. I note that in the Boyd/Laundry case you cited elsewhere in this thread he said that the legislators clearly mis-spoke when they used the word "defendant" and thus he saw nothing wrong with looking at the legislative history of the statute in question. Could it be that this is because he wanted to have a justification for finding what he found?

[EricOF]

Do you know what's really interesting about the facile comparison between the Texas law and the question of the NYU student? The left regards as analogous the *inappropriateness* of the question with that of the law. But, what if we flip the question and ask it another way?

Do we recognize that the student had the *legal* right to ask the question? Can he be hauled away for asking it? No one would say so. Therefore if the question is an example of Constitutionally protected free speech and the question is supposed to be analogous to the Texas law, the law must therefore also be perfectly consistent with the Constitution.

To put it more simply, if one were to concede that since the question is inappropriate that the law must be inappropriate, one must also concede that if the question is legally allowed so must be the law.

Of course this is equally as stupid a line of reasoning as the initial one, but it's funny that no one has yet to understand how easily the analogy can cut both ways.

[EricOF]

[ QUOTE ]
But it just so happens those chips fall on the right.

[/ QUOTE ]

Did they "fall on the right" in the flag burning case?

[andyfox]

Do they fall on the right 100% of the time? No. Do they fall on the right the vast majority of the time? Yes. Ruth Ginzburg's fall on the left the vast majority of the time. Isn't is possible she justifies her decisions, at least sometimes, based on her political preferences?

[QuadsOverQuads]

[ QUOTE ]
Scalia is known as a strict textualist.

[/ QUOTE ]

Scalia promotes himself as a "strict constructionist" (as do most right-wing judicial activists). But that is entirely different from actually being one.

If you want to see just how "strict constructionist" Antonin Scalia ISN'T, see Bush v. Gore. There is absolutely no possible way that Scalia can sustain the mantle of "strict constructionism" after his involvement in that rabidly corrupt decision.

Scalia is simply a right-wing judicial activist. Nothing more, nothing less.

[ QUOTE ]
He interprets the Constitution narrowly, choosing not to infer rights that are not explicitly stated in that document.

[/ QUOTE ]

Constitution of the United States, Amendment IX :

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

[ QUOTE ]
Rights not covered by the Constitution are left to the states by the 10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

[/ QUOTE ]

Note the last four words: "or to the people". See 9th Amendment, quoted above, for a little Constitutional context.

[ QUOTE ]
Not very ambiguous, is it? And so, laws regarding sexuality, domestic issues, small-scale crimes, etc. are left for the states to sort out.

[/ QUOTE ]

The only way you can arrive at this conclusion is to judicially delete the entire 9th Amendment from the Constitution. See, the states are only part of the equation. There are also rights that supersede both the power of the states and of the federal government. Both the 9th and 10th Amendments are clear on this, although modern right-wing activists ignore it because it doesn't fit their political agenda.


q/q

[natedogg]

[ QUOTE ]
[ QUOTE ]
Laws regarding sexuality, domestic issues, small-scale crimes, etc. are left for the states to sort out.

[/ QUOTE ]

How about school buses and school classes?

The federal government in the 1960s enforced school desegregation against (some) states' laws -- and wishes.

Despite the fact that the great state of Mississippi, in its alleged majority, wanted them uppity niggers to stay in their place, the United States government thought otherwise.

[/ QUOTE ]

Does anyone really think that these states would NOT have come around even without federal intrusions? The Feds were irrelevant and unnecessary. They only got involved once the public sentiment had achieved a critical mass so that something was going to change anyway.

natedogg

[PhatTBoll]

I'm not sure how this thread got resurrected, but I'll reply to your concerns.

Re: Bush v. Gore, this was discussed elsewhere in the thread. My belief is that Florida judges failed to honor a statute which had a plain meaning and purpose.

I don't know what your point is with the 9th Amendment discussion. It wasn't meant to supercede federal or state rights, but rather to act as a catch-all, to take an expansive rather than constrictive view where the federal government and the states are silent.
You seem to regard the 9th Amendment as a justification for courts to interject their own solutions regardless of legal precedent or statutes.

[natedogg]

This guy is my new hero.

natedogg

[QuadsOverQuads]

[ QUOTE ]
I don't know what your point is with the 9th Amendment discussion. It wasn't meant to supercede federal or state rights, but rather to act as a catch-all, to take an expansive rather than constrictive view where the federal government and the states are silent.

[/ QUOTE ]

Sorry, but you simply couldn't be more wrong. What you are saying is that the 9th Amendment has no meaning whatsoever in practice. What rights does it protect? From your statement, absolutely none. The feds have their enumerated powers, the states get all the rest, and "the people" -- as referenced in both the 9th Amendment and the 10th Amendment -- are always at the mercy of one or the other. Except, of course, for the specific exceptions spelled out in the Bill of Rights. But therein lies the problem: the 9th Amendment SPECIFICALLY says that those exceptions are NOT exhaustive. "The enumeration of certain rights in the Constitution shall not be construed to deny or disparage others retained by the people." Note: it does not say "the states" here. It says "the people". BIG difference. Second, it specifically says that the rights that it is protecting go beyond those "enumerated" in the text of the Constitution. It specifically says that there are "others".

And herein lies the issue: the 9th Amendment reserves certain NON-enumerated rights to "the people". The 10th Amendment echoes this in reference to the states. Now, as a "strict constructionist", how do you enforce this portion of the Constitution?

The right wing says basically what you've just said: ignore it, it's meaningless, just pretend it doesn't exist, it's just a "catch-all", it has no real-world effect.

I contend that this is not a "strict constructionist" stance, but is, rather, a highly activist stance -- a stance which requires the active judicial deletion of a critical portion of the Bill of Rights. It is an inflation of BOTH state and federal power beyond that which was originally anticipated in the Constitution, and it is, by the same token, a diminuation of the freedoms of American citizens that this Constitution protects.


q/q

[Sephus]

wow. you fit into this thread perfectly QoQ. you really do.

[Sephus]

you don't belong in the special olympics of arguing. when the judges catch on you will be DQ.