Scailia "Supreme Court over-turning segregation was mistake"

[JCady]

If Scalia gets to argue that racism is absolutely Constitutional because the Founding Fathers obviously thought so, I'm going to point out that the Founding Fathers just as obviously did not consider duels to be murder.

[Emerson33260]

I can live with Justice Scalia, as long as nobody requires me to smile while I do it. Clarence Thomas stood up all alone in favor of allowing low-level local bureaucrats to sexually abuse children as long as they only look but don't touch (Safford United School District #1 v. Redding). That still makes me angrier than any other opinion a Justice of the Supreme Court has put forth in my lifetime.

[Master of Ossus]

If Scalia gets to argue that racism is absolutely Constitutional because the Founding Fathers obviously thought so, I'm going to point out that the Founding Fathers just as obviously did not consider duels to be murder.

Not his argument, douchebag. Read the fucking thread. Scalia has no problem with updated laws and statutes, like for instance the various homicide offenses.

(Moreover, murder isn't even mentioned on the Constitution--treason is the only crime defined within it--and even if murder had been discussed in the Constitution, dueling was already an extremely archaic practice when the Constitution was drafted.)

[open_sketchbook]

Extremely archaic? Andrew Jackson considered dueling to be a polite greeting! Dueling was common enough that the Spanish army continued to allow it as a means of settling disputes between officers well into the 19th century, for example. While Washington and Franklin were not fans, dueling was hardly uncommon in the 1770s.

[Covenant]

He's really making two separate points.

First, that issues like racism and abortion and unfair payment practices are criminal issues, not constitutional ones, and so the states and local governments have the power to alter these practices.

Second, that the constitution can never change under any circumstance other than the amendment process, and probably not even then, because it's the guiding bedrock principle of the US.

Not surprisingly, a lot of people take issue with both. His second point is just absurd, as if the constitution was a perfect document just because it had some nice ideas and was a good set of law, but it had plenty of garbage in it as well, which we've partially removed, partially added to. The civil war should have sunk that argument for all time.

The first one is the bigger problem, since now he's interpreting, but he's doing it in a vicious sort of way. The big issue with the 14th Amendment is that it's clearly not in the framer's hands, it was added after the fact. But it was the only piece of protection to make blacks anything approaching rights. What would Scalia say about the 14th overall? Was it non-constitutional to add that? Or does adding such an Amendment make it constitutional?

Under his logic it seems we are to look at the original constitution only, one without protection for all citizens or genders, where women or non-whites have no defense against having their rights stripped from them because those rights are left to the state to preserve. In a dry sense, that's what the founders envisioned. But what good is such a document? It just makes him out to be a huge states-rights advocate and that's bullshit.

[Darth Wong]

Scalia's frame of reference is clearly that of a constitutional minimalist -- one who reads the document under the supposition that the Federal Government was established with a very narrow set of responsibilities and permissions.

Even if it was, the fact that the Constitution has been amended more than a dozen times pretty obviously means that this original concept was deemed to be inadequate (and if that didn't clinch it, the fact that the country couldn't even last through its first century without tearing itself apart should have done the trick). I think the guy is just engaging in Founding Fatherland worship.

Scalia fully understands the amendments, too: he just interprets them within the frame of reference of the time in which the amendments were made.

That's just another way of saying that he attaches value to the original author's intent at time of writing, which is simply another way to arrive at the same outcome: Founding Fatherland worship.

He's not a Founding Father worshipper--he's a strict constructionalist who reads all laws literally and seeks to apply the text strictly (he might say "faithfully"). In the case of the Constitution, this approach tends to be somewhat broader because the Constitution's text is meant to be read broadly, and so he reads it in the context of the period in which that text was drafted.

See above.

This is the heart of conservative politics: the assumption that everything was always better, more genuine, more legitimate in the past. When in doubt, go to the past. When confused, ask what the Founding Fathers would have done. It's more than a particular supposition, it's a habit of thought.

Except that he addresses questions of laws that were passed in modern times within the context of the modern period (when he finds that such contextualization is required to understand the text).

That doesn't change anything. The point is that he insists on assigning value to its original intentions, which is simply a very positive way of saying "Founding Fatherland worship". Modern laws have a modern original intention, and 18th century laws have an 18th century original intention, and he assigns value to that, even though those men often had horrible intentions (like upholding slavery).

[Feil]

Second, that the constitution can never change under any circumstance other than the amendment process, and probably not even then, because it's the guiding bedrock principle of the US.

Where did you get this damn fool idea? Honestly, I can't even think of a way to rebut such a fucking stupid claim. Would you like me to list every decision that was resolved on the grounds of one or the other Amendments since Scalia was appointed? Do you even have any knowledge of the Court beyond your kneejerk reaction to a Justice whose politics disagree with yours?

[Pint0 Xtreme]

Scalia fully understands the amendments, too: he just interprets them within the frame of reference of the time in which the amendments were made.

That's just another way of saying that he attaches value to the original author's intent at time of writing, which is simply another way to arrive at the same outcome: Founding Fatherland worship.

If I understand Master of Ossus correctly, it would only be partially Founding Fatherland worship since most of the amendments were written by people other than the founding fathers. I know a co-worker with this exact kind of mindset. For example, he argued that since the 14th amendment was written in response to the freeing of African American slaves after the civil war, the idea of equal protection in the 14th amendment should only be applied strictly to issues regarding race.

[Feil]

That's just another way of saying that he attaches value to the original author's intent at time of writing, which is simply another way to arrive at the same outcome: Founding Fatherland worship.

Are you aware that the most recent amendment to the Constitution was ratified in 1992? That the last twelve were ratified in the past hundred years?

[LMSx]

For what it's worth the main article has been updated with an editor's note and changed to remove, I quote, " an incorrect reference to Brown v. Board of Education in the initial version."

Scalia, alas, is still Scalia.

[Covenant]

Second, that the constitution can never change under any circumstance other than the amendment process, and probably not even then, because it's the guiding bedrock principle of the US.

Where did you get this damn fool idea? Honestly, I can't even think of a way to rebut such a fucking stupid claim. Would you like me to list every decision that was resolved on the grounds of one or the other Amendments since Scalia was appointed? Do you even have any knowledge of the Court beyond your kneejerk reaction to a Justice whose politics disagree with yours?

Nice overreaction Feil, I say he's making these points here, not that he's making a point here that's indicative of the way he votes on the bench. I think he's often a lot more flippant with this banter than he would be in a thoughtful context, but it still makes him look like a jackass. Instead of threatening to cite a bunch of boring case studies, you could just point out that Scalia has said several times that the road to enacting further rights is through the implementation of Amendments, which you would also find with his comments that these Amendment expansions are long, laborious and difficult by design and intent to counter-act the whims of a society.

So the first part of my statement is flat-out factually correct (he favors Amendments to the Constitution over reinterpretation of existing law) while the second may a bit of a reach, but he does not favor a rapid expansion of existing Constitutional authority and does not believe the tenor of the document changes--only specific wording. Adding an equal protection clause, under his view, does not widen the scope of previous articles except where there's a direct overlap. Just because you can't discriminate based on sex, he would argue, may not mean you can't discriminate based on gender preference--that'd be an issue for the states. In his view, it never changes, it just gets more clauses added.

There's nothing specifically wrong with that, but it's not as if he really wants people to hurry up and start adding amendments. He lauds the 19th Amendment as an example of what people should fight for, but that's really getting at what I'm saying, he likes the glacial pace of the Amendment process because he believes people need an extended period of time before they've actually made a decision--and he says that societies rarely mature over time, they rot. I'm not saying that he's a violent homophobe would would even prefer to see women, blacks or gays stripped of rights. I'm just saying he'd like to see any more rights than we have now (which are unfairly distributed) handled by the states or dragged out through the process of Constitutional Amendment. He complains about the growth of individual liberties as well. I presume that when you add all these things together you might end up with a combination of him not wanting to see this expansion of civil liberties manifested as a 'within our lifetime' enfranchisement of certain discriminated minorities, and given his personal opinions on some other subjects, I presume he might like for some of those other rights to never make it through at all.

So don't throw a hissy fit, I'm not saying he wants to roll it back to it's original inception or that he'd deny the Constitutionality of an amendment once passed. Just that he certainly doesn't want it to be easy, and does not believe interpretation is the right venue for it.

[Samuel]

That's just another way of saying that he attaches value to the original author's intent at time of writing, which is simply another way to arrive at the same outcome: Founding Fatherland worship.

Are you aware that the most recent amendment to the Constitution was ratified in 1992? That the last twelve were ratified in the past hundred years?

Except they are the ones that are the clearest and most limited. You have:
-income tax
-direct election of senators
-prohibition
-women's sufferage
-term limits
-DC in the electoral college
-elimination of poll taxes
-18 year olds can vote
-presidential succession
-congressional pay

None of these are exactly open to interpretation- they are nice, narrow and direct.

[Anguirus]

You will, of course, cite Scalia's statement that doing whatever the fuck he wants is one of the President's constitutional powers?

How's this?

What disadvantages do you see in the increasing scope of executive power under the Bush administration?

[sound: Pppfff] [laughter] What's the next question? [laughter]

From here:

[Darth Wong]

That's just another way of saying that he attaches value to the original author's intent at time of writing, which is simply another way to arrive at the same outcome: Founding Fatherland worship.

Are you aware that the most recent amendment to the Constitution was ratified in 1992? That the last twelve were ratified in the past hundred years?

Did you TOTALLY ignore the article text?

"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.

[Axis Kast]

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

The idea that there is no basis for understanding the intent of a law outside the framer's own point of view is not evidence that Scalia slavishly worships the Founding Fathers.

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

Because the intent of the Founding Fathers was to provide the maximum protection for the innocent, even at the expense of imperfect location and punishment of the guilty.

Since the Search and Seizure provisions were put in place by the Founding Fathers, it makes sense that he would refer to their intention in his interpretation.

[Samuel]

Because the intent of the Founding Fathers was to provide the maximum protection for the innocent, even at the expense of imperfect location and punishment of the guilty.

Since the Search and Seizure provisions were put in place by the Founding Fathers, it makes sense that he would refer to their intention in his interpretation.

Except the Bill of Rights was not origionally applied to the states.

Marbury v. Madison did away with this stupid argument. It established that courts are bound to follow the constitution, rather than laws of Congress which conflict with the Constitution. Judicial review was thus found to be an implicit power within the Constitution because it was necessary to fulfilling the expressly granted powers, just as how the Federal Government is allowed to buy ink and metal in order to print and press currency.

I know the reason- I just find it hilarious. It is of course implied with the whole "Constitution is the supreme law of the land", but the fact that the courts had to find it in the first place just gives me a kick. Of course the number of justices and how they enforce their will is entirely tradition.

[Master of Ossus]

"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?" 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.

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.

[Edi]

And what if there is more than one interpretation of the law that is true to the text as written?

You have to have some kind of arbitration sooner or later. What Scalia is saying is that essentially his interpretation is the only correct one though he has by no means established it in any sort of way. There are more legal theories than just the one he subscribes to and some of them have far fewer practical problems than his.

[Surlethe]

I don't think anybody is preferring Scalia's method of interpretation, just making clear what it is and what it isn't.

[Master of Ossus]

And what if there is more than one interpretation of the law that is true to the text as written?

Then he would try to find the interpretation of the text that was most consistent with what he felt was the intent of the drafters of the law.

You have to have some kind of arbitration sooner or later. What Scalia is saying is that essentially his interpretation is the only correct one though he has by no means established it in any sort of way. There are more legal theories than just the one he subscribes to and some of them have far fewer practical problems than his.

Example? Do you prefer Justice Stewart's "I know it when I see it" approach to rule-making? What about Justice Sotomayor's "wise Latina woman" methodology?

And what the fuck kind of "practical problems" does Scalia's legal theory even have? It's the same one that every civil law judge is supposed to have, and I don't see all of Continental Europe's justice systems falling apart (okay, I'll give you Italy).

I don't buy into Scalia's method, either, chiefly because I think that it's impossible to attribute a single intent to a Legislature that by definition consists of many people (which Scalia might counter by saying that it is a single legislative body, and that it speaks through its bills and the legislative process--a somewhat circular argument given that his view defines them as such).

However, Scalia's approach has obvious appeal, and I can buy the notion that it ought to be represented on the bench:

• It's extremely consistent--both in terms of individual cases and across the whole of the law. Everyone knows what Scalia will think of various arguments made in briefs and oral argument, and he doesn't have to pull out a new playbook every time he's presented with a new case in another body of law.
• It encourages legislative action and discourages litigation to right perceived problems with the law. (Arguably a bad thing)
• It is more responsive to the text of a law than any other legal theory of which I know.
• It's at least arguably true: if you're trying to figure out what something "means," it's a reasonable starting point to assess the point of view of the author. Literary scholars do this all the time. The alternative view, holding that the meaning of laws changes over time, is understandably disconcerting if you value any sort of consistency in the law. I actually think this is quite reasonable: to the extent the law has to change, that should be keyed in a legislative process that was designed specifically to change the law. Otherwise, well, it sucks to be the guy who relied on the old law when there was a new justice in town--he didn't have any notice that the law was changing until he lost.

Not to harp on this, but I honestly fail to see the "practical problems," here. It's extremely easy to anticipate what he's going to do based on the arguments the two sides come up with. It also eliminates the poor guinea pig who loses with no notice that the law's about to change in the form of a legislative statement that there's a new law.

[Pint0 Xtreme]

To what extent can Supreme Court justices ignore precedence? If Scalia, for example, interprets the 14th amendment that it only applies to issues regarding race, he would be ignoring a plethora of previous cases that applied the equal protection clause to non-race issues.

[Surlethe]

My impression is that the whole point of strict constructivism is to entirely negate the concept of precedent. If you're always interpreting law as strictly to the letter as you can, then there is no precedent. Following precedent means that the body of the law will itself evolve away from the letter of the law (indeed, that's what's been happening to the English Common Law through its history, as far as I know), whereas constructionists would like to see the law itself explicitly changed.

[Pint0 Xtreme]

My impression is that the whole point of strict constructivism is to entirely negate the concept of precedent. If you're always interpreting law as strictly to the letter as you can, then there is no precedent. Following precedent means that the body of the law will itself evolve away from the letter of the law (indeed, that's what's been happening to the English Common Law through its history, as far as I know), whereas constructionists would like to see the law itself explicitly changed.

Holy crap. Does that mean any and every argument that stems from previous precedence would hold absolutely no water with Scalia?

[Master of Ossus]

Holy crap. Does that mean any and every argument that stems from previous precedence [sic] would hold absolutely no water with Scalia?

Largely. This is the concept of "civil law," and as I've tried to point out, Scalia is basically a civil law jurist. My understanding is that he sort of views earlier cases as being "persuasive authority," but that he doesn't feel bound by them if he feels that they run contrary to a legislative text. He also tends to defer to executive-branch interpretations of statutes (e.g., EPA regulations), to the extent that they don't conflict with the text, too. He doesn't hold judicial precedent in nearly the same regard as, say, Justices Kennedy or Breyer, though.

[Pint0 Xtreme]

Largely. This is the concept of "civil law," and as I've tried to point out, Scalia is basically a civil law jurist. My understanding is that he sort of views earlier cases as being "persuasive authority," but that he doesn't feel bound by them if he feels that they run contrary to a legislative text. He also tends to defer to executive-branch interpretations of statutes (e.g., EPA regulations), to the extent that they don't conflict with the text, too. He doesn't hold judicial precedent in nearly the same regard as, say, Justices Kennedy or Breyer, though.

So when it comes to Brown v Board of Education, cases like that seem a little less straight forward in how Scalia would apply his view of the constitution. How would could he say whether or not racial segregation legislation run contrary to the equal protection clause? The 14th amendment makes no mention to the concept of segregation since it was an idea that didn't appear relevant or significant during the drafting of the amendment. Does he then imply that since the amendment doesn't address segregation, then it's therefore impossible to determine whether the segregation legislation is constitutional or not and the courts cannot make a ruling that negates existing legislation?