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.

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

That is his argument: racism is self-evidently Constitutional because the Founding Fathers were racists; thus any reading of the Constitution which holds racism to be unconstitutional is a liberal deviation from the Holy Will Of the Founders.

[Master of Ossus]

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?

Not necessarily--Scalia would certainly be open to looking at the legislative history of the Fourteenth Amendment, the Equal Protection Clause, and Section 5, to determine what was meant when the Amendment was drafted and passed. But Scalia's saying that he's found no evidence (and, in fact, none was presented when the case was argued or decided, so far I can tell) that segregation in schools was an issue when the Fourteenth Amendment was passed.

But I think you're confusing the point, here: Brown v. Board of Education was not about a new law, passed by the Congress, that outlawed racial segregation in schools. Brown v. Board was about a group of plaintiffs who claimed constitutional protection from segregation in schools. No federal statute was involved. Had Congress passed a law that said that segregation was banned in US public school systems, I think Scalia would almost certainly be willing to uphold that law as being constitutional (perhaps under the Commerce Clause or arguably even under Section 5 of the Fourteenth Amendment). I don't think he would have an issue with a legal requirement that schools be integrated, but he would have argued that the Constitution's protections don't extend that far. His quote from the OP is quite telling in this regard, taken only very slightly out-of-context: segregation "may be [a] bad idea[], but don't tell me it’s unconstitutional."

[Master of Ossus]

That is his argument: racism is self-evidently Constitutional because the Founding Fathers were racists; thus any reading of the Constitution which holds racism to be unconstitutional is a liberal deviation from the Holy Will Of the Founders.

No, that's not his argument, douchebag. We've gone over this in the fucking thread, which you seem totally oblivious to. In fact, there are so many distortions within your strawman that I don't know where to begin with it.

That is his argument: racism is self-evidently Constitutional because the Founding Fathers were racists;

1. He never said anything about the Founding Fathers, here, unless you consider the post-bellum Congress and the State Legislatures to be "Founding Fathers."
2. His argument doesn't rely at all upon even them--later amendments could have included language about segregation. Had a later amendment more specifically addressed the issue, then Scalia would've had no problem whatsoever saying it was unconstitutional (thus disproving your absurd reading of his statement as relying on the Founding Fathers).
3. Racism is self-evidently constitutional--it is an attitude. Disparate treatment of different groups by government actors (or, as per later cases, by institutions that influence interstate commerce) is unconstitutional. But Scalia's argument doesn't even involve this issue.

thus any reading of the Constitution which holds racism to be unconstitutional is a liberal deviation from the Holy Will Of the Founders.

It has nothing to do with the Founding Fathers. It has to do with the text of the Constitution. Had you read the fucking thread like you were instructed, you would have recognized this distinction since it's been discussed, supra.

[Samuel]

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?

Isn't the first in referance to pornography (which is almost entirely subjective) and the second... I'm pretty sure that Justice Sotomayor has not claimed to have any superpowers and follows precedent.

His quote from the OP is quite telling in this regard, taken only very slightly out-of-context: segregation "may be [a] bad idea[], but don't tell me it’s unconstitutional."

What? Is he claiming that a government body has grossly exceeded its authority and is using it in a beneficial manner? Why is this bad?

[Duckie]

Can anyone answer me why Master of Ossus is continuing to argue that Scalia has a coherent judicial philosophy, rather than arguing if it's a moral judicial philosophy? If I have a coherent set of ethics which are well-founded from the first written principle which says "Article I. Kill all children and rape their corpses" and interpretations thereof, I still have a terrible philosophy no matter how logically well-thought out and pure to my primary source document it is. Arguing "But oh look, it's so accurate" is so absurd I have to wonder if you're either short-sighted on what this is about, or being purposefully disingenuous.

Scalia doesn't believe in the Constitution, he believes in The Constitution As Seen By Conservatives, and it shows by his readings of it. There is simply no way you can read the constitution and the bill of rights to not mandate gay marriage and unconstitutionalise DOMA if it mandates desegregation. Absolutely no way, and I don't mean in a 'no sane man', I mean in actual fucking intent. Either a14 was meant to end discrimination, or it wasn't. There is no "(no homo)" at the end of it. Yet Scalia claims there's no gay rights in the constitution, but that he was misquoted about opposing desegregation? Scalia either is just making shit up to apply to modern conservative principles (HINT: It's this, he was picked by Bush for a reason, and he rules based on what Conservatives like him believe the country should be like, not on what the constitution says), or he has some magic gnostic reading of the 14th amendment and the full faith and credit clause that say some things they don't in anyone else's constitution.

Does modern Scalia support desegregation? Probably. Would he have voted to desegregate? Maybe, although I'm sceptical, especially since he's making a "Well I support it but it was done in the wrong way" claim (which is code speak for "I don't think it should have been done"). But even if he does, it's damn easy for him to say that as a Conservative on this side of Brown v. Board of Education, just like nowadays everyone supports the end of slavery. But I don't believe for one moment a person like him would have supported ending slavery had he been alive 150 years ago, or desegregation 45 years ago. He would have found desegregation it 'not in a literal reading of Amendment 14'. His comments about gay rights show that clearly.

However, this is a complete red herring. Ignoring that- if the US Constitution says that something that is moral is illegal, or that something immoral is legal, then burn the damned thing and damn anyone who says otherwise. Why the hell are we supposed to be accepting a document's rule if said rulings are unjust? Are we the Tribe of Israel, with the constitution handed directly down from God to Justice Scalia? Where does he think his Judicial Review power came from in the first place, or what it's supposed to be used for? John Marshall is spinning in his grave.

Fuck Scalia. It's a pity he's young, but there's always the hope fate will force him to retire early.

[Master of Ossus]

Isn't the first in referance to pornography (which is almost entirely subjective) and the second... I'm pretty sure that Justice Sotomayor has not claimed to have any superpowers and follows precedent.

The first is in reference to pornography, but I would argue that it's not a reasonable basis for a legal rule--it gives absolutely no certainty as to what the law is. It doesn't even clarify anything, it's totally unhelpful for society, and justifying Stewart's statement by saying that pornography is "almost entirely subjective" is completely circular because Stewart's opinion is what defined it to be almost entirely subjective. He developed no factors, nothing for anyone to consider when trying to decide if something is pornographic or not, and provided no framework within which a legal rule or even a legal guideline could be established.

As to the second, "following precedent" is not a coherent legal philosophy like what I was asking Edi to provide because SCOTUS must often address issues of first impression (or, at least, engage in de novo review of legal questions) and must often handle cases with precedent that appears to support both sides. (Judges at much lower levels frequently face these issues, too, but SCOTUS cases are deliberately selected to present such difficult questions of law.)

What? Is he claiming that a government body has grossly exceeded its authority and is using it in a beneficial manner? Why is this bad?

Because he considered it illegal.

[Master of Ossus]

Can anyone answer me why Master of Ossus is continuing to argue that Scalia has a coherent judicial philosophy, rather than arguing if it's a moral judicial philosophy? If I have a coherent set of ethics which are well-founded from the first written principle which says "Article I. Kill all children and rape their corpses" and interpretations thereof, I still have a terrible philosophy no matter how logically well-thought out and pure to my primary source document it is. Arguing "But oh look, it's so accurate" is so absurd I have to wonder if you're either short-sighted on what this is about, or being purposefully disingenuous.

Oh, for fuck's sake. You can't see how consistency is an important characteristic of a justice system? (I also described this exact link quite clearly in one of my posts--perhaps you have failed to read the fucking thread like JCady?)

Scalia doesn't believe in the Constitution, he believes in The Constitution As Seen By Conservatives, and it shows by his readings of it. There is simply no way you can read the constitution and the bill of rights to not mandate gay marriage and unconstitutionalise DOMA if it mandates desegregation. Absolutely no way, and I don't mean in a 'no sane man', I mean in actual fucking intent. Either a14 was meant to end discrimination, or it wasn't. There is no "(no homo)" at the end of it. Yet Scalia claims there's no gay rights in the constitution, but that he was misquoted about opposing desegregation? Scalia either is just making shit up to apply to modern conservative principles (HINT: It's this, he was picked by Bush for a reason, and he rules based on what Conservatives like him believe the country should be like, not on what the constitution says), or he has some magic gnostic reading of the 14th amendment and the full faith and credit clause that say some things they don't in anyone else's constitution.

Scalia was appointed by Reagan, you fucking idiot. And I think you're grossly misrepresenting his legal opinions.

Does modern Scalia support desegregation? Probably. Would he have voted to desegregate? Maybe, although I'm sceptical, especially since he's making a "Well I support it but it was done in the wrong way" claim (which is code speak for "I don't think it should have been done").

He fucking said that he wouldn't have! Do you have some gnostic version of this thread that omits the OP and a substantial fraction of the subsequent replies? That's not what the discussion is about.

But even if he does, it's damn easy for him to say that as a Conservative on this side of Brown v. Board of Education, just like nowadays everyone supports the end of slavery. But I don't believe for one moment a person like him would have supported ending slavery had he been alive 150 years ago, or desegregation 45 years ago.

What the fuck are you talking about? The Thirteenth Amendment ended slavery. For Scalia, that is the end of that.

However, this is a complete red herring.

Agreed.

Ignoring that- if the US Constitution says that something that is moral is illegal, or that something immoral is legal, then burn the damned thing and damn anyone who says otherwise. Why the hell are we supposed to be accepting a document's rule if said rulings are unjust?

The Constitution is the source of his authority as a Justice. He has no ability to act outside of the Constitution, or counter to it, in his role as a Justice on the Supreme Court. By your logic, this justice of the peace didn't do anything wrong. Oh, wait, except that he did something wrong from your perspective--the same authority you claim shows that Scalia's decisions are erroneous.

Are we the Tribe of Israel, with the constitution handed directly down from God to Justice Scalia?

The Constitution is the source of Scalia's authority as a Justice. He does not have the ability to alter the text--he must accept the Constitution as a given.

Where does he think his Judicial Review power came from in the first place, or what it's supposed to be used for? John Marshall is spinning in his grave.

You're the second person to claim this, and for the second time it makes no sense.

Fuck Scalia. It's a pity he's young, but there's always the hope fate will force him to retire early.

I hadn't realized that 73 year-olds were spring-chickens, but fuck you. It's obvious you have no idea what you're talking about because, just like JCady, you haven't read the thread and can't string two coherent thoughts together with a needle and thread. Your statements aren't in any way responsive to what the main discussion is about or to any of the interesting aspects of this topic.

Edit: For people who refuse to even recognize that Scalia's legal approach has any appealing attributes, please explain:
1. Whether you believe that the legal systems in essentially every country in continental Europe are fundamentally broken, stupid, or whatever other adjectives you've used.
2a. If you answered the first question affirmatively, explain in detail the mechanisms by which those systems fail to do justice vis-a-vis legal systems in countries like England, Canada, the US, and Australia.
2b. If you answered "No" to the first question, explain instead what makes the style of legal thought used by judges in France, Germany, Italy, etc., totally unacceptable in the form of Antonin Scalia, OR explain in detail how his legal philosophy differs from theirs.

[Axis Kast]

Can anyone answer me why Master of Ossus is continuing to argue that Scalia has a coherent judicial philosophy, rather than arguing if it's a moral judicial philosophy? If I have a coherent set of ethics which are well-founded from the first written principle which says "Article I. Kill all children and rape their corpses" and interpretations thereof, I still have a terrible philosophy no matter how logically well-thought out and pure to my primary source document it is. Arguing "But oh look, it's so accurate" is so absurd I have to wonder if you're either short-sighted on what this is about, or being purposefully disingenuous.

Master of Ossus is welcome to correct me if I am wrong, but I imagine that, given what has been indicated in the article quoted by the OP, Scalia would reply that it is not for him to decide whether a law is moral or immoral; only whether or not it violates the Constitution.

Scalia clearly does not envision that the Constitution is a source of rights beyond those placed directly in the text, the interpretation of all of which are contingent upon what was intended by those responsible for the amendment. If you were to criticize him on this count, he would tell you, "Rights are your department. Get out and legislate some rights. There's not much that will stop you."

Scalia doesn't believe in the Constitution, he believes in The Constitution As Seen By Conservatives, and it shows by his readings of it. There is simply no way you can read the constitution and the bill of rights to not mandate gay marriage and unconstitutionalise DOMA if it mandates desegregation. Absolutely no way, and I don't mean in a 'no sane man', I mean in actual fucking intent. Either a14 was meant to end discrimination, or it wasn't. There is no "(no homo)" at the end of it. Yet Scalia claims there's no gay rights in the constitution, but that he was misquoted about opposing desegregation? Scalia either is just making shit up to apply to modern conservative principles (HINT: It's this, he was picked by Bush for a reason, and he rules based on what Conservatives like him believe the country should be like, not on what the constitution says), or he has some magic gnostic reading of the 14th amendment and the full faith and credit clause that say some things they don't in anyone else's constitution.

Scalia seems to believe that the Constitution is a permissive document from the point of view of legislation, not rights. As Ossus has repeated again and again, he would contend that you are asking the courts to make, rather than rule on, law -- that you are transgressing on the privileges delegated to the United States Congress and other legislatures.

However, this is a complete red herring. Ignoring that- if the US Constitution says that something that is moral is illegal, or that something immoral is legal, then burn the damned thing and damn anyone who says otherwise. Why the hell are we supposed to be accepting a document's rule if said rulings are unjust? Are we the Tribe of Israel, with the constitution handed directly down from God to Justice Scalia? Where does he think his Judicial Review power came from in the first place, or what it's supposed to be used for? John Marshall is spinning in his grave.

So the Supreme Court of the United States is supposed to interpret the constitution according to their personal opinions on right and wrong, wholly outside of the guidelines which our society has set down for them, now and in the past, in the form of legislation that expresses our collective political will?

Since when has Judicial Review been synonymous with the right to act as (presumptive) enlightened dictator or unrestrained demagogue?

What happens when a justice -- Scalia, say -- arrives at an unsatisfactory conclusion from the point of view of certain citizens? Who will determine morality? Is it an absolute? If so, where can I find a copy of the checklist?

[Pint0 Xtreme]

But I think you're confusing the point, here: Brown v. Board of Education was not about a new law, passed by the Congress, that outlawed racial segregation in schools. Brown v. Board was about a group of plaintiffs who claimed constitutional protection from segregation in schools. No federal statute was involved. Had Congress passed a law that said that segregation was banned in US public school systems, I think Scalia would almost certainly be willing to uphold that law as being constitutional (perhaps under the Commerce Clause or arguably even under Section 5 of the Fourteenth Amendment). I don't think he would have an issue with a legal requirement that schools be integrated, but he would have argued that the Constitution's protections don't extend that far. His quote from the OP is quite telling in this regard, taken only very slightly out-of-context: segregation "may be [a] bad idea[], but don't tell me it’s unconstitutional."

I thought Brown v. Board of Education also applied to pre-existing segregation laws, namely the Jim Crow laws. The question was also whether the Jim Crow laws were constitutional or not. By Scalia's interpretation of the constitution, how would the Jim Crow laws be interpreted as constitutional?

And also, Scalia's interpretation of the constitution leaves very little room for disenfranchised minorities that are oppressed by majorities that are disapproving of them. Does he believe that the founding fathers designed a system of government that left very little legal recourse for such groups of people?

[Axis Kast]

I thought Brown v. Board of Education also applied to pre-existing segregation laws, namely the Jim Crow laws. The question was also whether the Jim Crow laws were constitutional or not. By Scalia's interpretation of the constitution, how would the Jim Crow laws be interpreted as constitutional?

And also, Scalia's interpretation of the constitution leaves very little room for disenfranchised minorities that are oppressed by majorities that are disapproving of them. Does he believe that the founding fathers designed a system of government that left very little legal recourse for such groups of people?

I think he believes that the founding fathers designed a system that is beholden, essentially, to the will of the majority. The protections available to minorities are exactly those which have been legislated. I think he perceives that the Constitution, which he interprets strictly, offers only a few, very specific, protections to a few, very specific, groups of people. However, I think he would also say, according to Ossus' arguments, that Scalia perceives that the Constitution has not imposed any kind of blanket provision about what is right or correct -- legislation explicitly protecting minorities, like the Hate Crimes Act, is perfectly Constitutional.

[Duckie]

Can anyone answer me why Master of Ossus is continuing to argue that Scalia has a coherent judicial philosophy, rather than arguing if it's a moral judicial philosophy? If I have a coherent set of ethics which are well-founded from the first written principle which says "Article I. Kill all children and rape their corpses" and interpretations thereof, I still have a terrible philosophy no matter how logically well-thought out and pure to my primary source document it is. Arguing "But oh look, it's so accurate" is so absurd I have to wonder if you're either short-sighted on what this is about, or being purposefully disingenuous.

Oh, for fuck's sake. You can't see how consistency is an important characteristic of a justice system? (I also described this exact link quite clearly in one of my posts--perhaps you have failed to read the fucking thread like JCady?)

I'm glad to see you still believe for some reason erroneously that the Supreme Court is an entirely criminal justice position rather than a political one. Consistency has nothing to do with it- the purpose of a political system is to produce a proper result. If Scalia consistently produces a ruling which is counter to what needs to be ruled, he's ruling wrong in the same way as a Jim Crow Law is an immoral law to pass. In fact, this is also the definition of justice in itself, and the reason why judges get such wide power over how they rule in criminal cases and sentencing so that they can interpret based on the situation and their understanding of the specifics of a case, but I guess we'll ignore this in order to continue to pretend Scalia is the Only Honest Man Who Is Just Judging By The Constitution Impartially and that everyone else just ignores the Constitution.

Scalia doesn't believe in the Constitution, he believes in The Constitution As Seen By Conservatives, and it shows by his readings of it. There is simply no way you can read the constitution and the bill of rights to not mandate gay marriage and unconstitutionalise DOMA if it mandates desegregation. Absolutely no way, and I don't mean in a 'no sane man', I mean in actual fucking intent. Either a14 was meant to end discrimination, or it wasn't. There is no "(no homo)" at the end of it. Yet Scalia claims there's no gay rights in the constitution, but that he was misquoted about opposing desegregation? Scalia either is just making shit up to apply to modern conservative principles (HINT: It's this, he was picked by Bush for a reason, and he rules based on what Conservatives like him believe the country should be like, not on what the constitution says), or he has some magic gnostic reading of the 14th amendment and the full faith and credit clause that say some things they don't in anyone else's constitution.

Scalia was appointed by Reagan, you fucking idiot. And I think you're grossly misrepresenting his legal opinions.

Yeah, I flubbed his appointment, I had his appointment and age swapped with Alito for some reason- the two are rather samey. But you can't just say "You're inaccurate on 1 point so the entire argument is inaccurate." So here's my paragraph again, because you refused to say anything about it.

Scalia doesn't believe in the Constitution, he believes in The Constitution As Seen By Conservatives, and it shows by his readings of it. There is simply no way you can read the constitution and the bill of rights to not mandate gay marriage and unconstitutionalise DOMA if it mandates desegregation. Absolutely no way, and I don't mean in a 'no sane man', I mean in actual fucking intent. Either Amendment 14's equal protection was meant to end discrimination, or it wasn't. There is no "(no homo)" at the end of it. Yet Scalia claims there's no gay rights in the constitution, but that he was misquoted about opposing desegregation? Scalia either is just making shit up to apply to modern conservative principles (HINT: It's this, he was picked by Bush Reagan for a reason, and he rules based on what Conservatives like him believe the country should be like, not on what the constitution says), or he has some magic gnostic reading of the 14th amendment and the full faith and credit clause that say some things they don't in anyone else's constitution.

Summary for low-skill readers: He isn't reading the Constitution. His conclusions are counterintuitive and contradictory and could only come from (gasp) an Interpretation that is no more valid than Kennedy's or Sotomayor's.

Does modern Scalia support desegregation? Probably. Would he have voted to desegregate? Maybe, although I'm sceptical, especially since he's making a "Well I support it but it was done in the wrong way" claim (which is code speak for "I don't think it should have been done").

He fucking said that he wouldn't have! Do you have some gnostic version of this thread that omits the OP and a substantial fraction of the subsequent replies? That's not what the discussion is about.

Do you have some ungnostic version of a brain that can't read? I'm asking why this isn't the question- Why are you so focused on "Scalia has a judicial philosophy that I claim is coherent and especially constitutional compared to other Justices even when it isn't" instead of "Scalia's judicial philosophy is complete bullshit that'd lead us to still have whites-only water fountains". Why is that not the important statement to you?

What the fuck are you talking about? The Thirteenth Amendment ended slavery. For Scalia, that is the end of that.

Uh huh, and would he have supported a court decision to remove slavery, just like removing segregation? No, judging by the fact that he wouldn't remove segregation. Isn't the bigger question what the hell kind of philosophy doesn't fix any of the parts of the United States that need fixing?. Or rather, as I've already explained the world's worst kept secret since the first supreme court itself, a Supreme Court Justice really applies their own idea of what the constitution should be when they read it. So what the hell kind of philosophy of an ideal America has whites-only water fountains?

Ignoring that- if the US Constitution says that something that is moral is illegal, or that something immoral is legal, then burn the damned thing and damn anyone who says otherwise. Why the hell are we supposed to be accepting a document's rule if said rulings are unjust?

The Constitution is the source of his authority as a Justice. He has no ability to act outside of the Constitution, or counter to it, in his role as a Justice on the Supreme Court. By your logic, this justice of the peace didn't do anything wrong. Oh, wait, except that he did something wrong from your perspective--the same authority you claim shows that Scalia's decisions are erroneous.

Except that I'm not claiming the Supreme Court and Judges should throw out the Constitution, I'm claiming that if the Constitution says something immoral the supreme court can't get around and which don't amend out, we should shred the thing and make a new one rather than force them to rule like that. That you continue to argue "Don't judge Scalia, he makes his decisions on the Constitution!" (because there's no other interpretations apparantly) is the point. If the Constitution is Scalia, which I will not again I dispute, then fuck the Constitution. It needs to be reinterpreted (ignored and rewritten via decree) from time to time so that it's not trapped in its own era.

Are we the Tribe of Israel, with the constitution handed directly down from God to Justice Scalia?

The Constitution is the source of Scalia's authority as a Justice. He does not have the ability to alter the text--he must accept the Constitution as a given.

Except the interpretation of the Constitution is part of a Justice's job. He can interpret it to say anything he wants it to. He can interpret it to say that equal rights exist for blacks. He can interpret it to be a long narrative in code about Elvis Presley's conversion to Hare Krishna-ism. There's nothing in the constitution that says "Interpret the Constitution Literally In This Way." That's why we have goddamn supreme court judges, who are picked based on the political bent of the way they read the damn thing, or the way all of them in truth just ignore it and attempt to fit it in to fit their judgements about what should be the ruling. Scalia isn't special in having some kind of magic red phone directly to the constitution's and amendments' writers that confirms exactly what they wanted a certain passage to mean, so don't go dishonestly claiming that the Constitution as written is reserved only for Scalia to interpret and that any other justice is being untrustworthy, variable, and dishonest in their attempt to rule in a way that isn't Scalia's.

Where does he think his Judicial Review power came from in the first place, or what it's supposed to be used for? John Marshall is spinning in his grave.

You're the second person to claim this, and for the second time it makes no sense.

You think the power to regulate every single thing the Commerce Clause covers and the right to an abortion are in the constitution? Judges interpret. It's a vague document and they make political decisions on it. Scalia has just stolen the idea that he alone reads the damn thing just like a biblical literalist claims only he reads the bible even when he ignores certain passages' implications and create new ones. That's really all Scalia is- a Constitutional Fundamentalist. He has his own interpretation of what it "really" means and he fits it into the words to rule in that way. Just like everyone else on the court. The difference is, he's a fucktard who rules immorally, so he deserves no respect for the way he rules.

[Master of Ossus]

I thought Brown v. Board of Education also applied to pre-existing segregation laws, namely the Jim Crow laws. The question was also whether the Jim Crow laws were constitutional or not. By Scalia's interpretation of the constitution, how would the Jim Crow laws be interpreted as constitutional?

Jim Crow laws were all state laws or even local and municipal ordinances. Scalia reads constitutional protections very narrowly--essentially restricting them to the immediate problems that the Constitution was meant to address.

And also, Scalia's interpretation of the constitution leaves very little room for disenfranchised minorities that are oppressed by majorities that are disapproving of them. Does he believe that the founding fathers designed a system of government that left very little legal recourse for such groups of people?

Not clear to me. Again, I don't think he especially cares what sort of system the Founding Fathers established. He would certainly extend protection to prevent people from being disenfranchised--that is unambiguously what the Fourteenth Amendment was meant to address. To the broader point, though, I think he would say that, to the extent we think that minority groups require protection, that is a legislative judgment. If you went to him with a law from the relevant legislature that arguably seemed to extend protection towards such groups, he would try to interpret it as faithfully as possible and he would certainly render decisions that would uphold what protections they had under that law. However, he would also tend to refrain from extending it beyond the text.

Broadly and essentially, I guess one way to describe Scalia's philosophy is that, as between the legislature and the judicial system, Scalia thinks and rules as if value judgments should always be the province of the legislature. He restricts judicial input to the system to adjudicating the meaning of laws, as opposed to the conferring of rights.

[Samuel]

And also, Scalia's interpretation of the constitution leaves very little room for disenfranchised minorities that are oppressed by majorities that are disapproving of them. Does he believe that the founding fathers designed a system of government that left very little legal recourse for such groups of people?

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).

Since when has Judicial Review been synonymous with the right to act as (presumptive) enlightened dictator or unrestrained demagogue?

Since the 14th amendment was passed and it was decided that corporation were people.

What happens when a justice -- Scalia, say -- arrives at an unsatisfactory conclusion from the point of view of certain citizens? Who will determine morality? Is it an absolute? If so, where can I find a copy of the checklist?

That already happened. Remember the case involving eminant domain? If it offends enough people, they will react. The thing is it is naturally easier for people to legislate a change after the court forces something than to get the majority to agree to protect a minority.

By your logic, this justice of the peace didn't do anything wrong. Oh, wait, except that he did something wrong from your perspective--the same authority you claim shows that Scalia's decisions are erroneous.

I don't ask that people follow their hearts- I ask they produce coherant reasons that improve human happiness. That individual clearly didn't. More to the point we can show that he didn't and he had access to enough information to realize that himself but refused to.

1. Whether you believe that the legal systems in essentially every country in continental Europe are fundamentally broken, stupid, or whatever other adjectives you've used.
2a. If you answered the first question affirmatively, explain in detail the mechanisms by which those systems fail to do justice vis-a-vis legal systems in countries like England, Canada, the US, and Australia.
2b. If you answered "No" to the first question, explain instead what makes the style of legal thought used by judges in France, Germany, Italy, etc., totally unacceptable in the form of Antonin Scalia, OR explain in detail how his legal philosophy differs from theirs.

I was under the impression that the structure of the United States government and courts was substantially different than that of Europe- for starters we haven't had a new constitution in over 200 years, we have a two party system, we have a difficult amendment process, we have an extremely vague bill of rights, we have a massive minority population, etc. Can you name a country that is roughly comparable?

The first is in reference to pornography, but I would argue that it's not a reasonable basis for a legal rule--it gives absolutely no certainty as to what the law is. It doesn't even clarify anything, it's totally unhelpful for society, and justifying Stewart's statement by saying that pornography is "almost entirely subjective" is completely circular because Stewart's opinion is what defined it to be almost entirely subjective. He developed no factors, nothing for anyone to consider when trying to decide if something is pornographic or not, and provided no framework within which a legal rule or even a legal guideline could be established.

That is because pornography itself is entirely subjective. Why should there be a hard an fast rule for something that is entirely mallable and changes over time? And he did provide a framework- wasn't that the case were they decided that pornography would be decided by the standards of the local community?

Because he considered it illegal.

You had to phrase it that way didn't you?

[Master of Ossus]

I'm glad to see you still believe for some reason erroneously that the Supreme Court is an entirely criminal justice position rather than a political one. Consistency has nothing to do with it- the purpose of a political system is to produce a proper result.

The political system, as Scalia views it, is broader than the one that you see because Scalia's political system consists of the government as a whole and also includes the legislative and executive branches of government.

If Scalia consistently produces a ruling which is counter to what needs to be ruled, he's ruling wrong in the same way as a Jim Crow Law is an immoral law to pass. In fact, this is also the definition of justice in itself, and the reason why judges get such wide power over how they rule in criminal cases and sentencing so that they can interpret based on the situation and their understanding of the specifics of a case, but I guess we'll ignore this in order to continue to pretend Scalia is the Only Honest Man Who Is Just Judging By The Constitution Impartially and that everyone else just ignores the Constitution.

To the extent that judges have discretion in such cases, Scalia would say that they are given that discretion by the legislature when it created those laws, and he would have absolutely no problem allowing judges to operate freely within those constraints.

Yeah, I flubbed his appointment, I had his appointment and age swapped with Alito for some reason- the two are rather samey. But you can't just say "You're inaccurate on 1 point so the entire argument is inaccurate." So here's my paragraph again, because you refused to say anything about it.

Scalia doesn't believe in the Constitution, he believes in The Constitution As Seen By Conservatives, and it shows by his readings of it. There is simply no way you can read the constitution and the bill of rights to not mandate gay marriage and unconstitutionalise DOMA if it mandates desegregation. Absolutely no way, and I don't mean in a 'no sane man', I mean in actual fucking intent. Either Amendment 14's equal protection was meant to end discrimination, or it wasn't. There is no "(no homo)" at the end of it. Yet Scalia claims there's no gay rights in the constitution, but that he was misquoted about opposing desegregation? Scalia either is just making shit up to apply to modern conservative principles (HINT: It's this, he was picked by Bush Reagan for a reason, and he rules based on what Conservatives like him believe the country should be like, not on what the constitution says), or he has some magic gnostic reading of the 14th amendment and the full faith and credit clause that say some things they don't in anyone else's constitution.

Summary for low-skill readers: He isn't reading the Constitution. His conclusions are counterintuitive and contradictory and could only come from (gasp) an Interpretation that is no more valid than Kennedy's or Sotomayor's.

Scalia would say that he is reading the Constitution, he's just not extending its protections any further. If you want gays to have substantive rights, or to address DOMA, or whatever the fuck else you want to do, then you should go to Congress and get them to pass a law. Once you do that, he will be very happy issuing all the opinions you want about that law to make sure that whatever protections the law conveys are conveyed.

Do you have some ungnostic version of a brain that can't read? I'm asking why this isn't the question- Why are you so focused on "Scalia has a judicial philosophy that I claim is coherent and especially constitutional compared to other Justices even when it isn't" instead of "Scalia's judicial philosophy is complete bullshit that'd lead us to still have whites-only water fountains". Why is that not the important statement to you?

Because I don't think that Scalia's argument is entirely unfounded. Would you rather have a court or a legislature determine what values the government should espouse? Personally, I don't know. I don't think it's "wrong" to say that judges should do it, but I don't think it's "wrong" to say that legislatures should do it. Should both have shared authority? I don't know--I don't think that there's a right answer to this question because I think that there's merit in either polar view, and merit to the moderate one, here. I'm not going to eviscerate someone for disagreeing with me about it.

Scalia would argue that his system does not lead to perpetual whites-only water fountains because he thinks that, to the extent we find those undesirable, the legislature would intervene and outlaw the practice. Again, he's operating with a much broader view of the government than you are. You appear to believe that the Judicial Branch is the one that should intervene whenever they see a problem. Scalia thinks the Legislative Branch should be the one to act. I don't know which one's right--there are major problems associated with either option, but they also both offer significant benefits.

I can say, though, that Scalia's obviously thought more about this than you have because you don't even see the trade-off that's inherent, here.

Uh huh, and would he have supported a court decision to remove slavery, just like removing segregation? No, judging by the fact that he wouldn't remove segregation. Isn't the bigger question what the hell kind of philosophy doesn't fix any of the parts of the United States that need fixing?.

A system that leaves it to the elected representatives of the people, rather than life-long appointees, to correct these perceived wrongs.

Except that I'm not claiming the Supreme Court and Judges should throw out the Constitution, I'm claiming that if the Constitution says something immoral the supreme court can't get around and which don't amend out, we should shred the thing and make a new one rather than force them to rule like that.

That is precisely "throwing out the Constitution." There is absolutely no difference between the two statements you just made.

That you continue to argue "Don't judge Scalia, he makes his decisions on the Constitution!" (because there's no other interpretations apparantly) is the point. If the Constitution is Scalia, which I will not again I dispute, then fuck the Constitution. It needs to be reinterpreted (ignored and rewritten via decree) from time to time so that it's not trapped in its own era.

I'm not saying that Scalia's interpretations of the Constitution are always right. I've been very careful about this, and even pointed out my skepticism of the idea (which I daresay is vastly better grounded than your incoherent ramblings on the topic).

Except the interpretation of the Constitution is part of a Justice's job. He can interpret it to say anything he wants it to.

Except, in your view of it, to say that the elected representatives of the people are the ones who should collectively express the values of society by debating the merits of proposed legislation and then passing laws based upon their collective judgment, and that it's the Judicial Branch's job to interpret those laws. That would just be outrageous.

He can interpret it to say that equal rights exist for blacks. He can interpret it to be a long narrative in code about Elvis Presley's conversion to Hare Krishna-ism. There's nothing in the constitution that says "Interpret the Constitution Literally In This Way."

Oh, I see, so he can interpret the Constitution any way he wants but it's absolutely, positively, utterly, completely, and unequivocally unacceptable if he tries to interpret it literally and strives to remain as close to the text and original intent of the document as possible. That makes perfect sense. I'm 100% with you.

That's why we have goddamn supreme court judges, who are picked based on the political bent of the way they read the damn thing, or the way all of them in truth just ignore it and attempt to fit it in to fit their judgements about what should be the ruling. Scalia isn't special in having some kind of magic red phone directly to the constitution's and amendments' writers that confirms exactly what they wanted a certain passage to mean, so don't go dishonestly claiming that the Constitution as written is reserved only for Scalia to interpret and that any other justice is being untrustworthy, variable, and dishonest in their attempt to rule in a way that isn't Scalia's.

Where have I claimed that straw-manning, semi-literate savage?

I think there's some merit to Scalia's approach; I also think there's room for plenty of others.

You think the power to regulate every single thing the Commerce Clause covers and the right to an abortion are in the constitution?

The Commerce Clause is in the fucking Constitution. Scalia doesn't see the second one in there.

Judges interpret. It's a vague document and they make political decisions on it. Scalia has just stolen the idea that he alone reads the damn thing just like a biblical literalist claims only he reads the bible even when he ignores certain passages' implications and create new ones.

The difference is that there's merit in reading the Constitution literally: it is the source of the Federal Government's power. "We the People... do ordain and establish this Constitution for the United States of America." For a member of the government to exceed the authority granted by the Constitution is to seize powers that were never given them by the US citizenry.

That's really all Scalia is- a Constitutional Fundamentalist. He has his own interpretation of what it "really" means and he fits it into the words to rule in that way. Just like everyone else on the court. The difference is, he's a fucktard who rules immorally, so he deserves no respect for the way he rules.

I don't see that at all: Scalia has a clearly defined legal approach to how he addresses legal questions. It's in no way "immoral." In fact, it has a lot to recommend for it. None of your criticisms of his understanding accurately address his understanding of the Judicial System: as merely one part of a broader government that collectively addresses social ills.

[Axis Kast]

I'm glad to see you still believe for some reason erroneously that the Supreme Court is an entirely criminal justice position rather than a political one.

The Supreme Court interprets the permissions and restrictions found in the Constitution; it does not legislate.

Consistency has nothing to do with it- the purpose of a political system is to produce a proper result.

The Supreme Court is not a political system.

If Scalia consistently produces a ruling which is counter to what needs to be ruled, he's ruling wrong in the same way as a Jim Crow Law is an immoral law to pass. In fact, this is also the definition of justice in itself, and the reason why judges get such wide power over how they rule in criminal cases and sentencing so that they can interpret based on the situation and their understanding of the specifics of a case, but I guess we'll ignore this in order to continue to pretend Scalia is the Only Honest Man Who Is Just Judging By The Constitution Impartially and that everyone else just ignores the Constitution.

You have not described a judge; you have described a king -- and one imbued with understanding of Truth™, as codified by Duckie.

Ossus' analysis does not suggest, or require, that Scalia be the Only Honest Man. He is not advocating for, but defending against misunderstanding of, Scalia.

Summary for low-skill readers: He isn't reading the Constitution. His conclusions are counterintuitive and contradictory and could only come from (gasp) an Interpretation that is no more valid than Kennedy's or Sotomayor's.

His conclusions are unsatisfying to you personally, because you are admittedly not interested in the interpretation of law, but in a specific set of political outcomes which you believe should typify life in the United States. I am certainly sympathetic to your vision of an extended national community in which the rights of minorities are heavily protected. However, Scalia's approach to Constitutional law is anything but counter-intuitive and contradictory. He is very consistent, as well as clear. Ossus put it best: Scalia believes that the COnstitution is a very "narrow" document, offering few clear rights. Rights, in his opinion, are "always ... the province of the legislature."

Do you have some ungnostic version of a brain that can't read? I'm asking why this isn't the question- Why are you so focused on "Scalia has a judicial philosophy that I claim is coherent and especially constitutional compared to other Justices even when it isn't" instead of "Scalia's judicial philosophy is complete bullshit that'd lead us to still have whites-only water fountains". Why is that not the important statement to you?

Because a consistent interpretation at least lets one anticipate his opinions, tee up counter-arguments, and understand the precedents established by him in our legal system. It makes him more accountable than somebody who offers the kind of personal-affective justification for decisions which you endorse.

Uh huh, and would he have supported a court decision to remove slavery, just like removing segregation? No, judging by the fact that he wouldn't remove segregation. Isn't the bigger question what the hell kind of philosophy doesn't fix any of the parts of the United States that need fixing?. Or rather, as I've already explained the world's worst kept secret since the first supreme court itself, a Supreme Court Justice really applies their own idea of what the constitution should be when they read it. So what the hell kind of philosophy of an ideal America has whites-only water fountains?

And Ossus is communicating to you that this Supreme Court justice at least appears to have a coherent and traceable point-of-view, rather than one that is largely unaccounted for.

Scalia's interest is not in judgment of philosophy. He literally leaves that to you.

Has it ever crossed your mind that, if Scalia could rule on his vision of a "proper" America, and therefore legislate from the bench -- if only within the minimal room-for-maneuver provided by whatever ambiguity might be found, or claimed to exist, in legislation -- somebody else could do it to? Getting us started down that road could lead us to a bad place. It's why we have three branches of government.

[Duckie]

Fine, I haven't taken enough time to analyse why exactly his America still would have whites-only water fountains due to some complex legal philosophy. I haven't looked in detail at the inner workings of such a system long enough so I'm completely unqualified to interject "But it's completely immoral to have whites-only water fountains, so what the fuck is he doing?". Sure, I'll concede that I know nothing about why Scalia does what he does, and that his philosophy is Internally Consistent if you define Consistency to the Constitution to mean "Constitution as read by Scalia", which sounds tautological to the extreme.

Except that that's complete bullshit in the same vein as the key question you keep ignoring. I don't care if his philosophy is 10,000 pages of absolute philosophically sublime writing which would shame every philosophy of Supreme Court Ruling to have ever come before it, if he prolongs segregation by a single day he is being a human being wrong, let alone being a Justice wrong. The Judiciary is the area which is most able to enact sweeping social change before popular consensus allows it. If we wait for people to catch up to human rights without any pushing, it's arguable if anything would ever occur, but moreso it would be slower. After Brown vs. Board of Education, support for Segregated Schools flatlined. Why? Because suddenly it was the law of the land no matter what anyone wanted, so society reshaped itself around it. Just like the executive order of the President desegregated the military. He didn't wait for 51% of dogfaces to be comfortable with negroes and for them to actually ask him to desegregate.

If Scalia's philosophy causes him to prolong human suffering of any minority a single day because he is waiting for a legislature to grow socially liberal enough pass a bill unpopular among the majority at the time, then fuck Scalia. You don't get that, why I say you can interpret it in any way, but that you should interpret it to give Equal Protection to all unless you're a moral invalid- I don't give a shit what his philosophy is or how beautiful and valid constitutionally it looks, I give a shit what it does. I don't give a shit what he says the purpose of government is, and I was wrong to engage you on that subject. I do care what Scalia does. Answer? For blacks, he wouldn't and won't have lifted a single finger. For gays, he won't lift a single finger. For women, he wouldn't and won't lift a single finger. For transsexuals, he won't lift a single finger. For Hispanics, for Asians, for Indians, he won't lift a single finger. So fuck him and his philosophy.

[Axis Kast]

None of us said that Scalia was an assured blessing to this nation. However, Scalia points the finger at us.

Asserting that the courts should lead the nation in progressive behavior ignores the fact that the courts are equally as susceptible to leading the nation backwards according to "broken" tradition, and forwards according to a philosophy worse than what is current. Empowering today's bench to carry on a moral crusade consistent with your thinking offers equally effective precedent to future justices who may have very different opinions. Equally important, since you can't offer a coherent explanation of what is "good" or "moral," which are inherently subjective and context-oriented, the idea has even less merit than it would otherwise.

Comparing the Supreme Court unfavorably to the presidency or the Congress is fruitless: all have different functions, based on their different permissions.

[Master of Ossus]

I don't ask that people follow their hearts- I ask they produce coherant reasons that improve human happiness. That individual clearly didn't. More to the point we can show that he didn't and he had access to enough information to realize that himself but refused to.

I suspect that Scalia would be able to produce a very cogent theory for how his view of the Constitution and the role he sees the Supreme Court playing within that system would advance human happiness. He might begin by noting that governments should be operated with some concept of Federalism to divide powers between carefully separated groups or individuals. Our Constitution divides powers between the three branches of government, leaves it to the Congress to pass laws (with limited Executive Branch input), and leaves it to the Judiciary to interpret those laws consistent with what's in the US Constitution. By striving to interpret laws consistent with the text, a judge advances this view of Federalism by encouraging the legislature to debate and pass the best laws that they can, will create consistency and give society a good ability to anticipate judicial actions and their rights under the law, and this will advance human happiness by encouraging people to request important rights to be clearly defined within the law while simultaneously providing excellent notice to all parties involved as to those rights.

I was under the impression that the structure of the United States government and courts was substantially different than that of Europe- for starters we haven't had a new constitution in over 200 years, we have a two party system, we have a difficult amendment process, we have an extremely vague bill of rights, we have a massive minority population, etc. Can you name a country that is roughly comparable?

The US is a unique country, I'll grant you that, but I fundamentally don't immediately see how any of these features that you've identified would render a legal standard that is uncontroversially considered ideal in a country with those features to being completely inappropriate in another.

In detail:
1. I don't think the age of the constitution should matter, for these purposes. The constitution can be amended, albeit through a clunky process, but moreover Scalia doesn't seem to require constitutional amendments to provide protections that other justices would read into the Constitution: he merely requires a law, which can be passed quite easily.
2. We do have a two-party system, but I don't see how this fundamentally alters the substantive Federal balance of power. Can you explain how having two parties systematically compromises the system's ability to pass legislation regarding substantive rights.
3. We do have a difficult amendment process, but as in 1, Scalia's argument leaves room for very easy passage of laws to recognize substantive rights--the legislative process isn't trivial, but it's not hard what I would call "hard," either.
4. We have a vague Bill of Rights, but I think Scalia would say that this is precisely why we need to apply his standard in the first place: the Legislature is the one to go through and evaluate precisely what rights should be extended and withheld to individuals based on the text of the Constitution. The Judicial Branch can set minimum guidelines based on an original understanding of these, but the Legislature should be the one to extend those rights based on its evaluations of their effects--analysis that he may feel judges are poorly equipped to perform themselves.
5. We have a large minority population, but again Scalia would argue that this is all the more reason to defer to the Congress. Indeed, the very size of the minority population serves to protect them to a large degree, by allowing them more voice in the Legislature than small minority groups would have.

That is because pornography itself is entirely subjective. Why should there be a hard an fast rule for something that is entirely mallable and changes over time? And he did provide a framework- wasn't that the case were they decided that pornography would be decided by the standards of the local community?

Precisely. That's not a legal standard. "I'll do whatever the people around me say I should do?" This is precisely the standard that Duckie wants the Judicial Branch to completely ignore, and that Pint0 sees danger in.

Moreover, merely because something has a subjective definition doesn't mean that there can be no guidelines set beyond "I [or the community]'ll know it when I see it." For instance, the border between PG-13 films and R films is entirely subjective, but there are still guidelines that the MPAA sets where they're supposed to look to certain things. You can decry those standards all you want, but at least it's something to point to with an overarching set of factors to consider.

[Master of Ossus]

Fine, I haven't taken enough time to analyse why exactly his America still would have whites-only water fountains due to some complex legal philosophy. I haven't looked in detail at the inner workings of such a system long enough so I'm completely unqualified to interject "But it's completely immoral to have whites-only water fountains, so what the fuck is he doing?". Sure, I'll concede that I know nothing about why Scalia does what he does, and that his philosophy is Internally Consistent if you define Consistency to the Constitution to mean "Constitution as read by Scalia", which sounds tautological to the extreme.

Duckie, it requires no complex legal philosophy to be concerned with specifically tasking the politically insulated Judiciary Branch, which is appointed for life and essentially cannot be removed regardless of the views of society at large, with making sweeping social changes according to whatever whim they happen to have on the day they render a decision. This is one of the dangers that Federalism (and the Constitution that you advocate disregarding at every possible turn) was meant to address. This is probably the single driving concern that has led Justice Scalia to his conclusion about the structure of the Federal Government. You don't even acknowledge that there's a danger in allowing such individuals to make their decisions in accordance with their views.

Except that that's complete bullshit in the same vein as the key question you keep ignoring. I don't care if his philosophy is 10,000 pages of absolute philosophically sublime writing which would shame every philosophy of Supreme Court Ruling to have ever come before it, if he prolongs segregation by a single day he is being a human being wrong, let alone being a Justice wrong. The Judiciary is the area which is most able to enact sweeping social change before popular consensus allows it.

DING DING DING! You have identified precisely why it's dangerous to have judges make these types of decisions in an ostensibly democratic society.

If we wait for people to catch up to human rights without any pushing, it's arguable if anything would ever occur, but moreso it would be slower. After Brown vs. Board of Education, support for Segregated Schools flatlined. Why? Because suddenly it was the law of the land no matter what anyone wanted, so society reshaped itself around it. Just like the executive order of the President desegregated the military. He didn't wait for 51% of dogfaces to be comfortable with negroes and for them to actually ask him to desegregate.

If Scalia's philosophy causes him to prolong human suffering of any minority a single day because he is waiting for a legislature to grow socially liberal enough pass a bill unpopular among the majority at the time, then fuck Scalia. You don't get that, why I say you can interpret it in any way, but that you should interpret it to give Equal Protection to all unless you're a moral invalid- I don't give a shit what his philosophy is or how beautiful and valid constitutionally it looks, I give a shit what it does. I don't give a shit what he says the purpose of government is, and I was wrong to engage you on that subject. I do care what Scalia does. Answer? For blacks, he wouldn't and won't have lifted a single finger. For gays, he won't lift a single finger. For women, he wouldn't and won't lift a single finger. For transsexuals, he won't lift a single finger. For Hispanics, for Asians, for Indians, he won't lift a single finger. So fuck him and his philosophy.

What's interesting about your "reasoning" (and I use that word extremely loosely) is that you purportedly despise a number of judges' opinions but simultaneously wish to invest judges with essentially limitless power to change society. You claim that judges who disagree with your views of "right" and "wrong" (which, incidentally, you can't seem to bother to define) are horrible people, bad for society, blah blah blah blah blah, and then turn around and demand that these same people ignore:
1. The Constitution--to whatever extent they don't like what it has to say
2. Congress, the President, and any and all legislation--to whatever extent they don't like what these things have to say
3. All of society

This is the basis you wish them to use when rendering decisions?

Has it not occurred to you that a judge might disagree with you about an important issue? What would you do, for instance, if a judge said that because Mr. White broke Mrs. Peacock's leg in a car accident, Mrs. Peacock should cluck three times and then break both of Mr. White's legs in retribution? Note that you cannot appeal, in this scenario, to the text or intent of any substantive law, or to the rest of society--remember that you want these judges to be making these decisions in the absolute face of the views of the rest of the country when they think it's right.

Or, let's use another hypothetical. What would you do with a judge who refused to order the Justice of the Peace in Louisiana to marry interracial couples, and held in his opinion that the guy's religious rights (or whatever) were allowed to trump clear legal precedent and legislation that required him to grant the license?

These judges would clearly be in the wrong. But wait they're doing exactly what you want them to do: screwing the rules and going with their guts in the face of society, the text of laws, the Constitution, etc.

This is the problem that Scalia is worried about. If you make judges unaccountable to the law, they have nothing left to account to--they're already insulated from any type of political process by the Constitution (assuming you bother to respect that). Congress can't touch them. The President can't touch them. They're never up for re-election, so the People can't touch them. And you would give them the power to completely disregard the text and spirit of any law that doesn't strike their fancy right up to, and including, the US Constitution.

[Duckie]

Newsflash Ossus: Following their prejudices and interpretations, Judges can make and have made wrong decisions, and I don't deny it. Plessy v Ferguson and Bowers v. Hardwick come to mind. Are these rulings constitutional? Maybe according to Scalia, but who cares? They deserved to be overturned and they were. Since these two rulings were contradictary, I declare: In one case or the other, Judges already ignored the Constitution, if the Constitution has any valid single interpretation whatsoever. Thus either Judges already perform as in your nightmare scenario or the Constitution is meaningless. Either scenario renders your concerns of tyrant Judges ruling America moot, unless the takeover is going to come very subtly, a century after the first overturning of a ruling, or has already occured.

Further these regrettable cases illustrate a point- when social change comes, the judiciary is often the vanguard in the change. Further, a recalcitrant judiciary can be overruled by constitutional amendment, as long as society isn't in the 50-60ish percent support sweet spot, at which it will probably not remain for long and the point at which judges start mysteriously changing their mind or new judges start rotating in. Witness Lawrence v. Texas, a significant reversal of a decision less than 2 decades after Bowers v. Hardwick.

I've never claimed the Judiciary can't make the wrong decision, but the fact is, in social issues, wrong turns for the Judiciary are rectified long before it could ever be solved by constitutional amendment, and probably by the legislature as well. Do you think in this day and age we could pass a constitutional amendment legalising homosexuality? Legalisation of Homosexuality actually paradoxically polls far below civil unions, employment nondiscrimination, or even gay marriage, because people aren't logical thinkers. You'd be hard pressed to get a 50%+1 national referendum on it. Do you think in 1896 or 1954 or 1969 we could have gotten a desegregation amendment?

Further, your sophist "But what is 'good'? What is 'moral'?" questioning is pointless, unless you want to seriously take the side that segregated water fountains are good. On issues of human rights cited so far in this thread, morality is visible by inspection if you are a functioning human being. On issues irrelated to it, I couldn't care less how the supreme court rules unless it causes direct harm. If expansive powers causes a fictional right not in the constitution to be invented and applied to anti-trust laws or telcom companies or somesuch that does not cause direct harm to people, I really don't care as long as it brings down segregation a single day more.

[Pint0 Xtreme]

I thought Brown v. Board of Education also applied to pre-existing segregation laws, namely the Jim Crow laws. The question was also whether the Jim Crow laws were constitutional or not. By Scalia's interpretation of the constitution, how would the Jim Crow laws be interpreted as constitutional?

Jim Crow laws were all state laws or even local and municipal ordinances. Scalia reads constitutional protections very narrowly--essentially restricting them to the immediate problems that the Constitution was meant to address.

That didn't quite answer my question. You said Scalia reads constitutional protections very narrowly but the problems with the Jim Crow laws relate directly to the 14th amendment. The plaintiffs of Brown v. Board of Education argued that segregation laws were a breach of the amendment's guarantee. The problem here apparently is "To what extent of equality does the equal protection clause provide?". You could say that segregation cannot be addressed by the 14th amendment because the issue was not at the forefront during the drafting of the amendment. However, I find that disingenuous at best since it directly relates to the treatment of Americans under the law, which is what the equal protection clause was written to address.

And also, Scalia's interpretation of the constitution leaves very little room for disenfranchised minorities that are oppressed by majorities that are disapproving of them. Does he believe that the founding fathers designed a system of government that left very little legal recourse for such groups of people?

Not clear to me. Again, I don't think he especially cares what sort of system the Founding Fathers established.

I don't follow. Why would he not care of what sort of system the Founding Fathers established? The Constitution is the document that essentially describes the system of government for the United States. Surely if his interpretation of the constitution is entirely dependent on the intent of the law when it was written, then surely the sort of system the Founding Fathers established in the constitution is of paramount importance, would it not?

He would certainly extend protection to prevent people from being disenfranchised--that is unambiguously what the Fourteenth Amendment was meant to address. To the broader point, though, I think he would say that, to the extent we think that minority groups require protection, that is a legislative judgment. If you went to him with a law from the relevant legislature that arguably seemed to extend protection towards such groups, he would try to interpret it as faithfully as possible and he would certainly render decisions that would uphold what protections they had under that law. However, he would also tend to refrain from extending it beyond the text.

That's why I asked you about Scalia's opinion on the constitution's protection of minorities. If we left the protection of minority groups to legislative action, then minority groups essentially have little defence against a large disapproving majority as legislative bodies are essentially a system of representative democracy. Of course more specifically, how does Scalia interpret the 14th amendment? You said he would certainly extend protection to prevent people from disenfranchised but that does not seem consistent with his view that Brown v. Board of Education was unwise as the Jim Crow laws essentially disenfranchised African Americans through legal segregation. To me, it would seem that his position only advocates the extension of equal protection if it the case involved an issue with race and with an understanding of "equal protection" as accepted by the authors of the amendment at the time of its drafting. Hence, segregation then would not be considered a breach of equal protection nor would the disenfranchisement of non-race related minorities. It's a pretty shitty definition of "equal protection" if you ask me.

Broadly and essentially, I guess one way to describe Scalia's philosophy is that, as between the legislature and the judicial system, Scalia thinks and rules as if value judgments should always be the province of the legislature. He restricts judicial input to the system to adjudicating the meaning of laws, as opposed to the conferring of rights.

You could also say the problem that stems from the competing interpretations of the constitution is the poorly written amendments. A term such as "equal protection" is massively loaded with a plethora of definitions that naturally evolves over time. Now I'm curious - has Scalia ever applied the equal protection clause in the constitution that applied to a non-race related minority? Or did I misrepresent the intent of the authors of the 14th amendment?

[Pint0 Xtreme]

And also, Scalia's interpretation of the constitution leaves very little room for disenfranchised minorities that are oppressed by majorities that are disapproving of them. Does he believe that the founding fathers designed a system of government that left very little legal recourse for such groups of people?

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.

[Samuel]

And also, Scalia's interpretation of the constitution leaves very little room for disenfranchised minorities that are oppressed by majorities that are disapproving of them. Does he believe that the founding fathers designed a system of government that left very little legal recourse for such groups of people?

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)?

By striving to interpret laws consistent with the text, a judge advances this view of Federalism by encouraging the legislature to debate and pass the best laws that they can,

And removing safety features encourages workers to be more careful. The aim isn't to make different parts to act better, but to get the whole system to work more effectively.

this will advance human happiness by encouraging people to request important rights to be clearly defined within the law while simultaneously providing excellent notice to all parties involved as to those rights.

I actually support this- I think the fact that rights in the constitution are extremely vague sort of makes them worthless. However the system does not seem to be prepared for the government to replace them with specific guarentees towards its citizens. So instead we have a legal tradition which gets... murky.

1. I don't think the age of the constitution should matter, for these purposes.

Because intentions shift- the fact we have to consider what the individuals who passed the amendments instead of just what it says shows that. Additionally problems come up that are structural and can't be dealt with by patching things over- nuclear weapons are a good example.

We do have a two-party system, but I don't see how this fundamentally alters the substantive Federal balance of power. Can you explain how having two parties systematically compromises the system's ability to pass legislation regarding substantive rights.

Because there will always be a group opposed to the expansion of rights and they will find a home in one of the parties. Since both parties are aiming for people in the middle, both parties will moderate their stance which generally results in the status quo.

3. We do have a difficult amendment process, but as in 1, Scalia's argument leaves room for very easy passage of laws to recognize substantive rights--the legislative process isn't trivial, but it's not hard what I would call "hard," either.
4. We have a vague Bill of Rights, but I think Scalia would say that this is precisely why we need to apply his standard in the first place: the Legislature is the one to go through and evaluate precisely what rights should be extended and withheld to individuals based on the text of the Constitution. The Judicial Branch can set minimum guidelines based on an original understanding of these, but the Legislature should be the one to extend those rights based on its evaluations of their effects--analysis that he may feel judges are poorly equipped to perform themselves.

I don't think that would work. Of the top of my head most legislatures are extremely large which makes anything of that manner almost impossible to carry out, there is little benefit for them to codify it, the might make decisions which completely screw with established tradition and, of course, they might abuse the power to limit their power.

5. We have a large minority population, but again Scalia would argue that this is all the more reason to defer to the Congress. Indeed, the very size of the minority population serves to protect them to a large degree, by allowing them more voice in the Legislature than small minority groups would have.

In the US minority populations have managed to protect themself when they achieved enough wealth, connections and power to influence politics. However, since the nature of the problem is that it prevents people from getting wealth, connections and power in the first place it generally requires acting in advance.

Moreover, merely because something has a subjective definition doesn't mean that there can be no guidelines set beyond "I [or the community]'ll know it when I see it." For instance, the border between PG-13 films and R films is entirely subjective, but there are still guidelines that the MPAA sets where they're supposed to look to certain things. You can decry those standards all you want, but at least it's something to point to with an overarching set of factors to consider.

Conceded- arbitrary standards that can be upgraded are a good way to deal with the legal issues of problems that are subjective.

[Terralthra]

This is the problem that Scalia is worried about. If you make judges unaccountable to the law, they have nothing left to account to--they're already insulated from any type of political process by the Constitution (assuming you bother to respect that). Congress can't touch them. The President can't touch them. They're never up for re-election, so the People can't touch them. And you would give them the power to completely disregard the text and spirit of any law that doesn't strike their fancy right up to, and including, the US Constitution.

What's interesting here is that none of this is actually in the Constitution. Seriously. There is no Constitutional basis for a Supreme Court justice having a life-time appointment, and there is explicitly a phrase stating that they may hold the office only "in good behavior," meaning that there must be some way to remove them. As they are appointed by the executive to a federal post, they fall under Article II, Section 4, and may be impeached for treason, bribery, etc., at the very least. Nothing at all says that the President can't demand a resignation from a justice in the same way he can of any federal appointee.

Also, it's interesting that Scalia claims that the 14th amendment concerns federal racial discrimination, not state legislation, while simultaneously claiming to be strictly constructionist. Amendment XIV, Section 1 is quite clear: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

I also don't know how anyone can pass up the gimme on strict constructionism granted by the extremely clear wording of the 9th Amendment, nor the word-for-word reasoning given by a representative from the state of Georgia at the second Constitutional Congress, quoted often: "If we list a set of rights, some fools in the future are going to claim that people are entitled only to those rights enumerated and no others."

[Samuel]

What's interesting here is that none of this is actually in the Constitution. Seriously. There is no Constitutional basis for a Supreme Court justice having a life-time appointment, and there is explicitly a phrase stating that they may hold the office only "in good behavior," meaning that there must be some way to remove them.

Don't forget that they can simply appoint more justices and stack the court- it is why we have 9 justices up from the origional 5.