Scailia "Supreme Court over-turning segregation was mistake"

[Surlethe]

As I think about it, I suspect that Scalia's philosophy would have led him to support the Iowa gay marriage decision: If I'm recalling it correctly, the State's constitution very plainly and explicitly forces legal privileges and protections extended to one group to be extended to all groups, so a law that restricts legal privileges to one group must, by a strict reading of the text, be unconstitutional. Am I getting that right?

[Darth Wong]

"Once you abandon the original understanding of the text, there is no other criteria.''

"I did it by regarding what the framers would have thought about a technique that essentially intrudes into the house without the consent of the homeowners to find out what is going on in the house,'' Scalia said. "They clearly would have thought that was unlawful.''

Straight from the horse's mouth. He is a Founding Fatherland worshipper.

So, saying that laws should be read within the framework of the intention of the drafters of those laws="Founding Fatherland worshipper?"

Yes. He is saying that whenever possible, we should always use the originators' intentions. This automatically implies that their intentions are more valid than those of more modern people, despite the fact that we know they were a bunch of racist slave-owners. The only reason he doesn't say this for more recent amendments is because they obviously had no intentions for the recent amendments since they didn't write them.

I guess, defined that way, it would be true, but most people restrict "Founding Fathers" to the colonial period; not to modern amendments and laws passed by much later Congresses.

As I said, "wherever possible". It's obviously impossible to use "the Founding Fathers' intentions" for modern amendments. That doesn't change the fact that he's basically treating the Founding Fathers' intentions as superior whenever he is able to do so.

His fundamental point is that if you don't like what the state of the law is, then you should have Congress change the law; you shouldn't appeal to a court to try and reinterpret it into nonexistence or irrelevance because courts have to stay faithful to the text of the law.

Except that he's contradicting himself. If he says they should stay faithful to the text of the law, then they should do precisely that, instead of appealing to "what the framers would have thought".

[Pint0 Xtreme]

I'll comment on other stuff later, but the correct answer is that the founding fathers didn't care about minorities- you know the whole Greek basis? It is about conflicts betweem the few (the rich) and the many (the poor).

That's not how I understood it. There is ample evidence, such as passages in the federalist papers, that indicated that the founding fathers understood the dangers of the tyranny of the majority. Whether or not they felt compelled to address it in the constitution or not, it seemed to me that they were at least concerned about a number of minorities. Many of the founding fathers did in fact view slavery as an issue that the country would have to resolve either sooner or later.

Do you have any reason to believe they were refering to ethnic groups and not religious differences (which had previously been a cause of alot of friction in Europe)?

Well, for one, many of the founding fathers knew that slavery of African Americans was a human problem. But it may very well be the case that they primarily had religious differences in mind when speaking of the tyranny of the majority.

[Pint0 Xtreme]

As I think about it, I suspect that Scalia's philosophy would have led him to support the Iowa gay marriage decision: If I'm recalling it correctly, the State's constitution very plainly and explicitly forces legal privileges and protections extended to one group to be extended to all groups, so a law that restricts legal privileges to one group must, by a strict reading of the text, be unconstitutional. Am I getting that right?

Are you sure that the state's constitution's equal protection clause was originally written in mind by the authors to include sexual minorities? Because that's what Scalia's philosophy hinges upon. At least, that's how I understand it.

[Darth Wong]

Scalia is a fucking liar anyway. If he insists on restricting rights and constitutional protections only to "what the framers would have thought", where does he get off defending corporate lobbying as a form of freedom of expression? There's absolutely no fucking way Thomas Jefferson was thinking "giant multi-national corporations need to have the ability to bribe politicians with campaign money" when he was pushing for the First Amendment. And what's Scalia's opinion on the "Wall of Separation between Church and State"?

This is what I hate about conservative douchebags. It's bad enough that they're reactionary morons, but they can't even be consistent about it. The few times when their stated mindset might actually result in a good outcome, they make glaring exceptions.

[Pint0 Xtreme]

Yes, that's what pisses me off the most. These 'strict constructionist' justices and apologists apply inconsistent standards that coincidentally favor conservative positions. The strict constructionist argument frequently ends up being applied to cases regarding the equal protection clause - segregation for example or marriage equity. And even more infuriating is the slippery slope asserting that expanding the definition of equal protection means the justice department is suddenly becoming a dictatorial branch of government that threatens democratic rule.

[The Yosemite Bear]

Well we can't let those plebs have rights now can we?

After all the whole empire would collapse if the Caesar and the Senate weren't in control of everything.

[Axis Kast]

As I said, "wherever possible". It's obviously impossible to use "the Founding Fathers' intentions" for modern amendments. That doesn't change the fact that he's basically treating the Founding Fathers' intentions as superior whenever he is able to do so.

You misunderstand. Scalia is not passing judgment on whether or not a particular law is sensible. He is simply contending that one cannot understand the content of law without referring to the circumstances and intent of its authors.

Scalia regards his job as making determination about whether or not particular laws are consistent with the Constitution, which he regards as offering a very narrow set of rights. He does not believe, as Master of Ossus has previously illustrated, that it is his place to interpret meaning into existing legislation. Deciding the content of a law -- what it means -- is for the legislature; determining whether it meets a set of limited Constitutional criteria is for Scalia and the other justices.

[Master of Ossus]

Duckie

Serious question: why do we have laws in our society? In your view, the role of courts is simply to do equity with every case. Presumably, prior case law is irrelevant for this purpose. It's clear that you think that laws are irrelevant for this purpose since you think they can and should be disregarded anytime they conflict with equity.

Yes. He is saying that whenever possible, we should always use the originators' intentions. This automatically implies that their intentions are more valid than those of more modern people, despite the fact that we know they were a bunch of racist slave-owners. The only reason he doesn't say this for more recent amendments is because they obviously had no intentions for the recent amendments since they didn't write them.

WHAT? Scalia uses the same method to interpret modern amendments that he does for the rest of the Constitution. He views all framers equally.

As I said, "wherever possible". It's obviously impossible to use "the Founding Fathers' intentions" for modern amendments. That doesn't change the fact that he's basically treating the Founding Fathers' intentions as superior whenever he is able to do so.

Whenever it's consistent with a much broader legal theory--something you continually ignore. You're putting the cart before the horse: you're claiming that Scalia tries to follow the Founding Fathers' intentions, when it's much more accurate and far simpler to say that he's trying to follow Legislative intent, with legislative intent being defined broadly to include all US statutes. Because the Founding Fathers wrote laws that, to limited degree, remain influential today he continues to use their intent. Were those laws to be rewritten, of course he would enforce the new laws and assign no deference to the Founding Fathers' outdated views.

It is absolute bullshit to claim that he's treating the Founding Fathers' intentions as superior "whenever he is able to do so." He does not allow Founding Father intentions to override modern laws, even when the Founding Fathers' views are clearly in conflict with modern law.

Except that he's contradicting himself. If he says they should stay faithful to the text of the law, then they should do precisely that, instead of appealing to "what the framers would have thought".

He does stay faithful to the text, but where the text is ambiguous he tries to resolve the ambiguity by attempting to evaluate the intent of the drafters. I have no idea why this is a difficult concept for you.

[Darth Wong]

Except that he's contradicting himself. If he says they should stay faithful to the text of the law, then they should do precisely that, instead of appealing to "what the framers would have thought".

He does stay faithful to the text, but where the text is ambiguous he tries to resolve the ambiguity by attempting to evaluate the intent of the drafters. I have no idea why this is a difficult concept for you.

Oh for fuck's sake, are you deliberately being an asshole? I get that. I just don't agree with it. I think that the words of the oh-so-glorious Founding Fathers are actually better than their intentions in many cases. In short, I think their words are actually improved by interpretation with modern sensibilities. There is absolutely nothing about "original intent" which makes it intrinsically superior. Their original intention is fucking bullshit; they were a bunch of slave-owning assholes whose stupid-ass idea of a massively decentralized country was totally unworkable.

I also noticed that both you and Kast decided to completely ignore the point I made shortly afterwards, about how Scalia is obviously lying about sticking to original intent anyway. Unless you seriously believe Thomas Jefferson was thinking "multi-national corporations being able to use campaign financing to lobby politicians" when he pushed for the First Amendment.

[Master of Ossus]

Scalia is a fucking liar anyway. If he insists on restricting rights and constitutional protections only to "what the framers would have thought", where does he get off defending corporate lobbying as a form of freedom of expression? There's absolutely no fucking way Thomas Jefferson was thinking "giant multi-national corporations need to have the ability to bribe politicians with campaign money" when he was pushing for the First Amendment.

That is absolutely the wrong fucking question, and you know it. The issue for Scalia isn't whether the framers had in mind a particular application of the rights that they were creating, but rather whether the protection they were creating was broad enough to encompass the questioned conduct. That's what he was talking about with the infrared scans inside private residences--the Framers had no concept of such technology, and therefore obviously didn't have this particular application of constitutional rights in mind, but he estimated that the rights that were embodied in the Constitution were broad enough to protect people from such government action.

The correct question, according to Scalia, would be something along the lines of, "Would the Framers have extended Freedom of Speech to an incorporated entity?" In my estimation, this should inarguably by answered affirmatively: had an incorporated printing press published and handed out leaflets denouncing a political candidate, or paid to finance a political campaign, then the identity of that press as a corporation would never have been considered by Jefferson or Jay or Madison in their evaluation of the righteousness of the conduct. (Or, if they had struck it down they would have done so because of the current understanding that corporate charters would have identified the incorporated press too closely with the Government, as opposed to any argument that First Amendment Rights wouldn't extent to such groups).

But even beyond that, corporations have been considered legally fictional people since the first Supreme Court cases on the issue.

(Ironically, I think that Hugo Black--himself an Originalist--was an early opponent of this view of the Corporation, but he was obviously a much later justice).

And what's Scalia's opinion on the "Wall of Separation between Church and State"?

He's on record as stating that it should be a matter of legislation; not one that's interpreted by the courts.

This is what I hate about conservative douchebags. It's bad enough that they're reactionary morons, but they can't even be consistent about it. The few times when their stated mindset might actually result in a good outcome, they make glaring exceptions.

Except that they can. As for the corporate personnage debate, what do you define as a "good outcome?" What the ACLU says? What John McCain says? What the CATO Institute says? What the Reporters Committee for Freedom of the Press says?

Also, I think that people like you, who are totally ignorant of his actual legal philosophy, would be surprised by some of his past decisions and certainly by his legal arguments in his opinions. For instance, Scalia was the one who wrote the dissent in Hamdi v. Rumsfeld.

[Master of Ossus]

Oh for fuck's sake, are you deliberately being an asshole? I get that. I just don't agree with it. I think that the words of the oh-so-glorious Founding Fathers are actually better than their intentions in many cases. In short, I think their words are actually improved by interpretation with modern sensibilities. There is absolutely nothing about "original intent" which makes it intrinsically superior. Their original intention is fucking bullshit; they were a bunch of slave-owning assholes whose stupid-ass idea of a massively decentralized country was totally unworkable.

Yet the later intention doesn't appear in the Constitution (see, e.g., the Thirteenth Amendment). Moreover, again, if you don't like the original intent but can create a new law that fits within the wording, then just get Congress to pass a new law that answers to modern sensibilities. That's all that Scalia wants you to do and then he'll run out and issue as many opinions as you want that uphold the law, even though it's totally counter to the intentions of the Framers.

As for there being nothing "intrinsically superior" to the Framers' view, Scalia might agree with you but argue that the principle of stare decisis (basically, "legal consistency") requires that for legal purposes when the state of the law is clear we should continue to follow the original state of the law until it is overridden by more modern law.

[Darth Wong]

Yet the later intention doesn't appear in the Constitution (see, e.g., the Thirteenth Amendment). Moreover, again, if you don't like the original intent but can create a new law that fits within the wording, then just get Congress to pass a new law that answers to modern sensibilities. That's all that Scalia wants you to do and then he'll run out and issue as many opinions as you want that uphold the law, even though it's totally counter to the intentions of the Framers.

As for there being nothing "intrinsically superior" to the Framers' view, Scalia might agree with you but argue that the principle of stare decisis (basically, "legal consistency") requires that for legal purposes when the state of the law is clear we should continue to follow the original state of the law until it is overridden by more modern law.

And how does any of this bullshit fit in with the fact that Scalia would like to kill McCain-Feingold on the grounds that it violates a brutally butchered modern interpretation of the First Amendment?

[Master of Ossus]

And how does any of this bullshit fit in with the fact that Scalia would like to kill McCain-Feingold on the grounds that it violates a brutally butchered modern interpretation of the First Amendment?

I already address this point, above. Your parody of Scalia's process is a complete strawman and fails to address his reasoning process.

[Darth Wong]

That is absolutely the wrong fucking question, and you know it. The issue for Scalia isn't whether the framers had in mind a particular application of the rights that they were creating, but rather whether the protection they were creating was broad enough to encompass the questioned conduct.

In other words, when it's convenient for him, he interprets their intentions broadly, and would like to smack down legislative action as unconstitutional on that basis, but when it's convenient for liberals, he suddenly becomes a "strict constructionist" and takes pains to point out that the Constitution should be interpreted in the most minimalist way possible. Suuure, there's no evidence of inconsistency here, is there?

That's what he was talking about with the infrared scans inside private residences--the Framers had no concept of such technology, and therefore obviously didn't have this particular application of constitutional rights in mind, but he estimated that the rights that were embodied in the Constitution were broad enough to protect people from such government action.

The correct question, according to Scalia, would be something along the lines of, "Would the Framers have extended Freedom of Speech to an incorporated entity?" In my estimation, this should inarguably by answered affirmatively: had an incorporated printing press published and handed out leaflets denouncing a political candidate, or paid to finance a political campaign, then the identity of that press as a corporation would never have been considered by Jefferson or Jay or Madison in their evaluation of the righteousness of the conduct. (Or, if they had struck it down they would have done so because of the current understanding that corporate charters would have identified the incorporated press too closely with the Government, as opposed to any argument that First Amendment Rights wouldn't extent to such groups).

But even beyond that, corporations have been considered legally fictional people since the first Supreme Court cases on the issue.

(Ironically, I think that Hugo Black--himself an Originalist--was an early opponent of this view of the Corporation, but he was obviously a much later justice).

"Inarguably"? They would "inarguably" have agreed that freedom of speech should mean not freedom from persecution for speaking one's mind, but the ability of the rich to effortlessly drown out the voices of the poor in the political process?

And what's Scalia's opinion on the "Wall of Separation between Church and State"?

He's on record as stating that it should be a matter of legislation; not one that's interpreted by the courts.

And yet the whole point of that clause in the First Amendment was to create this Wall of Separation, according to Thomas Jefferson. I guess "framer's intent" is only important when it's conservative?

This is what I hate about conservative douchebags. It's bad enough that they're reactionary morons, but they can't even be consistent about it. The few times when their stated mindset might actually result in a good outcome, they make glaring exceptions.

Except that they can. As for the corporate personnage debate, what do you define as a "good outcome?" What the ACLU says? What John McCain says? What the CATO Institute says? What the Reporters Committee for Freedom of the Press says?

You honestly see no social problem with the idea that the rich can flood the media with their opinions in a manner totally disproportionate to their demographics?

Also, I think that people like you, who are totally ignorant of his actual legal philosophy, would be surprised by some of his past decisions and certainly by his legal arguments in his opinions. For instance, Scalia was the one who wrote the dissent in Hamdi v. Rumsfeld.

I have never claimed to be a constitutional scholar. What I do know is that "intentions" are quite often what people want them to be, so it's ridiculous to claim that you're hewing more closely to the Constitution by attempting to read those intentions, unless the writer himself made a public statement about the intention (and even then, it might be misinterpreted). You've only further demonstrated that in your argument here.

[Darth Wong]

And how does any of this bullshit fit in with the fact that Scalia would like to kill McCain-Feingold on the grounds that it violates a brutally butchered modern interpretation of the First Amendment?

I already address this point, above. Your parody of Scalia's process is a complete strawman and fails to address his reasoning process.

How is it a parody? You just re-phrased it in a wordier way, to make it sound less ridiculous, without changing the premise at all.

[Master of Ossus]

That is absolutely the wrong fucking question, and you know it. The issue for Scalia isn't whether the framers had in mind a particular application of the rights that they were creating, but rather whether the protection they were creating was broad enough to encompass the questioned conduct.

In other words, when it's convenient for him, he interprets their intentions broadly, and would like to smack down legislative action as unconstitutional on that basis, but when it's convenient for liberals, he suddenly becomes a "strict constructionist" and takes pains to point out that the Constitution should be interpreted in the most minimalist way possible. Suuure, there's no evidence of inconsistency here, is there?

It's precisely the same analysis in two different contexts. You may not like how his analysis turns out, but you have presented absolutely no evidence that he uses an inconsistent methodology to generate his results.

"Inarguably"? They would "inarguably" have agreed that freedom of speech should mean not freedom from persecution for speaking one's mind, but the ability of the rich to effortlessly drown out the voices of the poor in the political process?

First of all, corporations at the time were by no means always rich--in fact, I believe that most of them were schools that were residuals from the English colonial system. More important, the distinction between an individual financing political speech and a corporation doing so isn't clear and certainly would not have been clear at the time.

And yet the whole point of that clause in the First Amendment was to create this Wall of Separation, according to Thomas Jefferson. I guess "framer's intent" is only important when it's conservative?

Do you have some sort of selective brain-rotting disease that makes it so you're incapable of considering someone else's thoughts if their conclusions are not your own? "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Well, what does that mean? If you want to expand it beyond what the Framers originally thought it meant, you'd better come up with a legislative text that says that it should.

You honestly see no social problem with the idea that the rich can flood the media with their opinions in a manner totally disproportionate to their demographics?

Of course I see problems with it! But I also see problems with saying that corporations aren't allowed to have political influence commensurate with the rights of natural citizens.

I have never claimed to be a constitutional scholar. What I do know is that "intentions" are quite often what people want them to be, so it's ridiculous to claim that you're hewing more closely to the Constitution by attempting to read those intentions, unless the writer himself made a public statement about the intention (and even then, it might be misinterpreted). You've only further demonstrated that in your argument here.

I agree that Scalia's method is questionable--I myself don't agree with it and certainly wouldn't use it as a jurist--I have pointed this out repeatedly in this thread. Having said that, your parody of his methods neither addresses its weaknesses nor illustrates its failings.

You have also consistently shut your ears and screeched when the strengths of his analysis have been discussed--including when you would likely agree with the results, yet don't acknowledge that Scalia remains faithful to his methodology when doing so brings him into accord with politically liberal ideologies.

[Darth Wong]

It's precisely the same analysis in two different contexts. You may not like how his analysis turns out, but you have presented absolutely no evidence that he uses an inconsistent methodology to generate his results.

I have; you have simply ignored it. When it comes to freedom of expression, he expands it based on the assumption that it meant something other than protecting people from being unjustly persecuted for individual behaviour, as was routinely the case in the theocratic countries the early Americans came from. The idea that this should be extended to protection for glorified political bribery is a joke, never mind the "inarguable" truth that you claim it is. And then you turn around and preposterously claim that any attempt to interpret the First Amendment as a "Wall of Separation" would be "extending" it beyond the writers' intentions, even though Thomas Jefferson himself very clearly spelled out that this was the intention.

First of all, corporations at the time were by no means always rich--in fact, I believe that most of them were schools that were residuals from the English colonial system. More important, the distinction between an individual financing political speech and a corporation doing so isn't clear and certainly would not have been clear at the time.

The distinction between "speaking my mind" and "glorified political bribery" would probably have been quite well understood at the time.

And yet the whole point of that clause in the First Amendment was to create this Wall of Separation, according to Thomas Jefferson. I guess "framer's intent" is only important when it's conservative?

Do you have some sort of selective brain-rotting disease that makes it so you're incapable of considering someone else's thoughts if their conclusions are not your own? "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Well, what does that mean? If you want to expand it beyond what the Framers originally thought it meant, you'd better come up with a legislative text that says that it should.

You're a goddamned liar. I pointed out twice already that Jefferson himself described this as the intention, and you're actually claiming that it would be "expanding it beyond" what they meant?

You honestly see no social problem with the idea that the rich can flood the media with their opinions in a manner totally disproportionate to their demographics?

Of course I see problems with it! But I also see problems with saying that corporations aren't allowed to have political influence commensurate with the rights of natural citizens.

What problems? Name one social problem with the idea that a corporation should have less political influence than natural citizens, particularly since every worker and shareholder in that corporation already has those rights on an individual basis, so the corporation effectively double-counts their rights by getting rights of its own (assuming their interests and the corporation's interests coincide, which they often do).

I agree that Scalia's method is questionable--I myself don't agree with it and certainly wouldn't use it as a jurist--I have pointed this out repeatedly in this thread. Having said that, your parody of his methods neither addresses its weaknesses nor illustrates its failings.

You have also consistently shut your ears and screeched when the strengths of his analysis have been discussed--including when you would likely agree with the results, yet don't acknowledge that Scalia remains faithful to his methodology when doing so brings him into accord with more liberal ideologies.

What the fuck? Right here in this post, you are pushing two mutually contradictory positions: that free speech rights should be extended to cover things that you know the framers were not thinking of, and that religious freedom should NOT be extended to cover things that Jefferson himself explicitly said he WAS thinking of.

[Axis Kast]

Oh for fuck's sake, are you deliberately being an asshole? I get that. I just don't agree with it. I think that the words of the oh-so-glorious Founding Fathers are actually better than their intentions in many cases. In short, I think their words are actually improved by interpretation with modern sensibilities. There is absolutely nothing about "original intent" which makes it intrinsically superior. Their original intention is fucking bullshit; they were a bunch of slave-owning assholes whose stupid-ass idea of a massively decentralized country was totally unworkable.

Scalia's reply would be that, in the absence of working off the framers' intent, the courts would be legislating by fiat. He is substantially correct, and Master of Ossus' invitation to consider the implications of just who and what determines desirable outcomes in our society, if not the collective will, expressed through the popular ballot.

Scalia uses the framers' intent because he would otherwise be reading his own values into the law. He might represent to you that such behavior would essentially be playing shadow legislator, albeit within the margins of ambiguity which exists in whatever laws Congress sees fit to pass.

I also noticed that both you and Kast decided to completely ignore the point I made shortly afterwards, about how Scalia is obviously lying about sticking to original intent anyway. Unless you seriously believe Thomas Jefferson was thinking "multi-national corporations being able to use campaign financing to lobby politicians" when he pushed for the First Amendment.

Master of Ossus just tackled this one, although I find it strange that you would insist that there is only one valid approach to interpretation of intent. You are, again, welcome to correct me if I have misunderstood your arguments, but you sound substantially like Duckie in that it appears you believe that there is effectively one sound interpretation of the law, and that it is nearly self-evident.

"Inarguably"? They would "inarguably" have agreed that freedom of speech should mean not freedom from persecution for speaking one's mind, but the ability of the rich to effortlessly drown out the voices of the poor?

This seems to be based on your affective view of the corporation - an assumption that they are inherently bad.

And yet the whole point of that clause in the First Amendment was to create this Wall of Separation, according to Thomas Jefferson. I guess "framer's intent" is only important when it's conservative?

What is a Wall of Separation? Why is Scalia wrong to suggest that there is some ambiguity there that could benefit from the clarity of fresh legislation?

You honestly see no social problem with the idea that the rich can flood the media with their opinions in a manner totally disproportionate to their demographics?

There is no protecting society from the influence of the powerful; only their direct actions. And I wonder if Scalia would focus on the potential negative impact of disproportionate input, or simply say, "There are no prohibitions against this..."

As with Duckie, I don't deny that I'd like certain outcomes legislated. However, I also understand the rationale, and credibility, behind Scalia's implicit warning that it may be best to avoid allowing judges to do as they please.

I have never claimed to be a constitutional scholar. What I do know is that "intentions" are quite often what people want them to be, so it's ridiculous to claim that you're hewing more closely to the Constitution by attempting to read those intentions, unless the writer himself made a public statement about the intention (and even then, it might be misinterpreted). You've only further demonstrated that in your argument here.

Master of Ossus has not endorsed Scalia as "correct." He has only specified that Scalia is at least providing rationales that are clear and straightforward, whether one disagrees or not. He has a philosophy which can be anticipated and tracked. That makes him more accountable.

[Samuel]

This seems to be based on your affective view of the corporation - an assumption that they are inherently bad.

They are inherently amoral. The problem is that if given power they will push their own agenda which often conflicts with that of the country's citizens.

What is a Wall of Separation? Why is Scalia wrong to suggest that there is some ambiguity there that could benefit from the clarity of fresh legislation?

That is the ambiguity part. As for wall of seperation it means keeping the government out of the affairs of religion.

[Master of Ossus]

I have; you have simply ignored it. When it comes to freedom of expression, he expands it based on the assumption that it meant something other than protecting people from being unjustly persecuted for individual behaviour, as was routinely the case in the theocratic countries the early Americans came from.

Freedom of expression was conceived of as being extremely broad when it was written into the Constitution.

The idea that this should be extended to protection for glorified political bribery is a joke, never mind the "inarguable" truth that you claim it is. And then you turn around and preposterously claim that any attempt to interpret the First Amendment as a "Wall of Separation" would be "extending" it beyond the writers' intentions, even though Thomas Jefferson himself very clearly spelled out that this was the intention.

What the fuck is a "Wall of Separation?" Define precisely what this encompasses, and what it excludes. That is not an unambiguous term, as you suggest it to be.

The distinction between "speaking my mind" and "glorified political bribery" would probably have been quite well understood at the time.

This imposes your view of corporate speech into an historical debate, even though there's very little evidence of this. Jay and Madison and Hamilton, for instance, didn't see the Federalist papers as "glorified political bribery," even though they were using their influence to widely disseminate papers and pamphlets to advocate a particular view of the US Constitution.

You're a goddamned liar. I pointed out twice already that Jefferson himself described this as the intention, and you're actually claiming that it would be "expanding it beyond" what they meant?

I don't know what a "Wall of Separation" is. It's nice language, but to pretend that it neatly and completely bifurcates what is and is not permissible is a gross exaggeration at best. Does that mean that the US should not extend allow the Cathedral in Washington DC to call itself "The National Cathedral?" That doesn't strike me as being unreasonable, but I also don't see it as necessarily demanded by stating that the correct interpretation is that there should be a "Wall of Separation" that never made it into the Constitution itself.

What problems? Name one social problem with the idea that a corporation should have less political influence than natural citizens,

How the fuck do you want to have a social debate about Net Neutrality without AT&T and Google getting a say in it? Net Neutrality is self-evidently something that should take up some time in our legislative process because it affects the rights and interests of a great many people. Without the ability to use corporate dollars to define and then advance a corporate position on that issue, large corporate players who would obviously be substantially affected by the outcome of any such legislation would be held without any voice.

particularly since every worker and shareholder in that corporation already has those rights on an individual basis, so the corporation effectively double-counts their rights by getting rights of its own (assuming their interests and the corporation's interests coincide, which they often do).

Right. And wives shouldn't be allowed to vote because their husbands can already be counted on to represent their interests at the ballot box.

Not only do individual employees and shareholders have a far smaller and more marginal interest in following the proceedings than their respective companies do, but without expending corporate dollars to think through and then disseminate that viewpoint there would be no assurances that employees would even have access to information that would help them understand the corporate (or their personal) interest in the issue. Without some level of corporate involvement in the political process, huge interests would be going under- or even unrepresented. That is a bad social outcome.

What the fuck? Right here in this post, you are pushing two mutually contradictory positions: that free speech rights should be extended to cover things that you know the framers were not thinking of,

Free speech was conceived of as being extremely broad when it was written into the Constitution. Are you saying that the Framers of the Bill of Rights did not think that it would have extended to protect an incorporated printing press that was set to produce political materials during the times of John Jay and James Madison?

Incidentally, just as Duckie did throughout his involvement in the thread, you have once again conflated my opinion with that of Scalia with no justification whatsoever.

and that religious freedom should NOT be extended to cover things that Jefferson himself explicitly said he WAS thinking of.

I don't know what Jefferson's test was for determining on which side of the "Wall of Separation" certain behaviors would fall on. Evidently churches and religious institutions benefit from various laws that exist in the US, and evidently the US is constitutionally allowed to expend resources that tangentially benefit religious activities (for instance: would you consider it a constitutional violation for police and prosecutors to expend state resources recovering property stolen from a synagogue and then prosecuting the thieves?). I also recognize that some things clearly do violate this constitutional provision. But where is the "Wall of Separation" located between the two extremes? Wherever you vaguely point to when you say "That's where the wall is," there will invariably be cases that narrowly fall on one side of it or the other. You and Duckie want judges to pin down where the Wall lies in the absence of legislative intervention (essentially) by assigning their own values to cases at bar. Scalia is more comfortable insisting that, to the extent that the law should be changed from its original framing, Congress should be the group to do it.

Edit: I should also point out the contradiction which is inherent in your position: even as you require judges to use their values and ideas to adjudicate matters that come before them, you ridicule and demean a particular Justice who has done just that. The reason for this is that Justice Scalia values different things than you do, and responds to different dangers than the ones that you see. In short, both you and Duckie want judges who adopt all of your values and agree with you 100% of the time. I would submit that that standard is neither achievable nor desirable in a justice system--it is a selfish and short-sighted approach to the judicial system.

[Samuel]

What the fuck is a "Wall of Separation?" Define precisely what this encompasses, and what it excludes. That is not an unambiguous term, as you suggest it to be.

Well that is mostly because the US doesn't tax churches and gives them special priviledges which is hard to fit under any reasonable definition.

This imposes your view of corporate speech into an historical debate, even though there's very little evidence of this. Jay and Madison and Hamilton, for instance, didn't see the Federalist papers as "glorified political bribery," even though they were using their influence to widely disseminate papers and pamphlets to advocate a particular view of the US Constitution.

Private citizen =/ company.

Does that mean that the US should not extend allow the Cathedral in Washington DC to call itself "The National Cathedral?"

I missed the part in the constituion where the federal government got the power to force people to choose certain names when they are naming things. In fact outside of actually causing harm (aka they are two places with the same name, hate speech, stupid kids names) I don't see why it could possibly be any of the governments business.

but I also don't see it as necessarily demanded by stating that the correct interpretation is that there should be a "Wall of Separation" that never made it into the Constitution itself.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

It seems pretty clear- congress can neither support or attack religion.

Free speech was conceived of as being extremely broad when it was written into the Constitution. Are you saying that the Framers of the Bill of Rights did not think that it would have extended to protect an incorporated printing press that was set to produce political materials during the times of John Jay and James Madison?

or abridging the freedom of speech, or of the press;

Evidently churches and religious institutions benefit from various laws that exist in the US, and evidently the US is constitutionally allowed to expend resources that tangentially benefit religious activities (for instance: would you consider it a constitutional violation for police and prosecutors to expend state resources recovering property stolen from a synagogue and then prosecuting the thieves?).

Just like every other institution in the country. The point is they should NOT be treated any differently.

But where is the "Wall of Separation" located between the two extremes? Wherever you vaguely point to when you say "That's where the wall is," there will invariably be cases that narrowly fall on one side of it or the other. You and Duckie want judges to pinpoint which side these cases fall on.

Please, lets be serious here. This is Darth Wong. Eliminate religious exemptions, tax exemptions, fraud exemptions and drawing that line suddenly becomes alot easier. Just because the government isn't doing it doesn't mean it isn't easy to do properly.

[Master of Ossus]

Well that is mostly because the US doesn't tax churches and gives them special priviledges which is hard to fit under any reasonable definition.

True; if it were up to me we would allow for no such deduction. But the point remains that some behavior is difficult to classify: what happens when police expend time and resources to track down someone who's robbed a synagogue?

Private citizen =/ company.

So what's the difference that's relevant, here? Many of the Framers operated their own businesses. Benjamin Franklin, for instance, was a printer. Would you have barred him from such forms of discourse? What if his print shop was co-owned by his friends? What if it was a privately-held corporation? An S-Corp?

I missed the part in the constituion where the federal government got the power to force people to choose certain names when they are naming things. In fact outside of actually causing harm (aka they are two places with the same name, hate speech, stupid kids names) I don't see why it could possibly be any of the governments business.

The National Cathedral doubtless collects money and influence from the Association and arguably the name connects it to the State and the Government's interests.

It seems pretty clear- congress can neither support or attack religion.

What happens when it's not clear what they're doing? Government action invariably affects religious groups, even when it's not intended to.

Just like every other institution in the country. The point is they should NOT be treated any differently.

So you'd treat all the organizations as if they were their own... people... kind of. That were ... created... artificially... by the... law... like some kind of... legal fiction, maybe?

Please, lets be serious here. This is Darth Wong. Eliminate religious exemptions, tax exemptions, fraud exemptions and drawing that line suddenly becomes alot easier.

I agree with all of those things--if I were in charge we'd do them. I don't see that this suddenly resolves all possible issues of legal interpretation relating to the division between Church and State--it just shifts the Wall from where it is, now.

Just because the government isn't doing it doesn't mean it isn't easy to do properly.

Okay, so we've eliminated all of those things. Do you honestly think that there is no category of cases that could come up, now, in which there is any ambiguity whatsoever as to whether or not a proposed government action would cross the line?

[Surlethe]

Would Scalia actually be inclined take Jefferson's interpretation of the First Amendment into account? Jefferson wasn't actually involved in any of the writing of the Constitution - he was in France throughout the whole process - so he wouldn't actually be considered one of the original authors of the Constitution.

[Terralthra]

What problems? Name one social problem with the idea that a corporation should have less political influence than natural citizens,

How the fuck do you want to have a social debate about Net Neutrality without AT&T and Google getting a say in it? Net Neutrality is self-evidently something that should take up some time in our legislative process because it affects the rights and interests of a great many people. Without the ability to use corporate dollars to define and then advance a corporate position on that issue, large corporate players who would obviously be substantially affected by the outcome of any such legislation would be held without any voice.

So, corporations should have a voice in political debates because if corporations didn't have a voice, corporations wouldn't have any voice. Interesting that you took so many words to put forward such a circular argument. I'd think the maxim "if you can't contribute meaningfully, at least be terse," would've applied.