Scalia on sodomy

[PhatTBoll]

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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.

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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]

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

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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.

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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.

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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.

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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.

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

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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]

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Gee.

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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]

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

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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]

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Scalia is known as a strict textualist.

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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.

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

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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.

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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."

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

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

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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.


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