If Scalia is wrong, explain to me why many Democrats and women pursued the Equal Rights Amendment in the 70’s. Surely, if the 14th Amendment already granted women perfectly equal rights a hundred years before, the ERA was totally superfluous. But they recognized, that it *didn’t* do that and was never intended to. Likewise, it’s pretty clear that it wasn’t intended to provide for gay rights at a time when sodomy was genuinely a death-penalty offense.

You’re saying that we should read the Amendment in a “21st” century way and ignore the intent of the framers and authors of it. But laws are never interpreted without reference to their original intent (and shouldn’t be). Of course, there has been some expansion of 14th Amendment protection over time. You would extend that protection to gays and women (more or less arbitrarily). Scalia, taking a historical view, chooses not to. That doesn’t make him wrong.

As for Democratic voter fraud–four words: Black Panthers with sticks. Oh, and two more–Al Franken–talk about a stolen election…

Scalia likes to use, when it’s conveninent for his political views, a form of judicial review called “originialism.”

This is considered a valid perspective – but not holey valid as it was the doctrine which produced the outcome of the Dredd Scott case. More on that in a moment.

In law there is also another common notion called “belt and suspenders”. This is redundancy in law, to uphold a notion, from two directions to ensure a legal principle remains valid.

The first and most obvious case of this is the Bill of Rights. The Bill of Rights was a notion of English freedoms that were the result of the Glorious Revolution in 1688 (if memory serves). Many people objected to the first draft of the Constitution because it did not specifically enshrine and spell out the rights of men that Englishmen (and now Americans) had inherented from English constitutional law – they feared a loss rights and freedoms. The defenders of the constitution (see the Federalist Papers) said that these rights and freedoms were intrinsic to the constitution, because the Federal Government was limited to only those powers that were enumerated to it in the constitution. This is “the belt”. Objectors did not abate, so a compromise was established, that the constitution would have amended to it the bill of rights immediately after it was ratified by the states. The objectors abated, the bill of rights (the first nine or 10 amendments to the constitution) followed immediately afterword. This was “the suspenders”. In fact, a third set of suspenders is injected in at the end of the bill of rights, those rights not enumerated here are reserved to the states and the people, respectively – because it was believed that there were many more implied rights that weren’t enumerated in the bill of rights (a right to privacy, for one).

So the notion of a bill of rights is implied in the constitution, by not being enumerated, then to reinforce the importance of those rights as fundamental, are enumerated in the bill of rights, and then furthermore, the bill of rights reinforces the limitations of the powers of the federal government as to only those enumerated. (unfortunately state government power limitarions were not enumerated and so today the state has ‘police’ power which is virtually plenary except in the area of the bill of rights (and in those powers states’ ceded to the Federal Government through enumeration in the constitution).

This “Belt and Suspenders” notion pops up all the time. Most noticeably for income tax. The original constitution clearly gives the federal government the power to “tax and spend” for the general welfare. That means it can tax – and that would include income tax. But in the last quarter of the 19th century this issue was debated – especially by the wealthy and powerful. By 1900, American industry finally felt strong enough to compete internationally, it got behind free trade arguments, which meant eliminating substantially, tariffs, which had been the main source of government funding since the ratification of the constitution. Pursuit of free trade policies necessitated income tax. To ensure that the government would not go unfunded, a set of suspenders would have to be introduced to go with the “tax and spending” clause in the constitution- and so an amendment was passed to reinforce the power of the government to implement an income tax.

However, the most notorious “belt and suspenders” notion in constitutional law has to do with the Originalist argument that was used in the Dredd Scott case. In that case, Chief Justice Taney argued, that since the writers of the constitution basically said all men are free and equal and enjoy equally, the rights of the constitution”, but at the same time the writers did not make slaves free, equal or imbued with the rights of the constitution, then, in the minds of the writers of the constitution, negro slaves were not viewed as “men” and thus could not have enjoy the rights of men under the constitution.

Many, if not most historians, believe that this ruling made the Civil War inevitable.

Most of the northerners believed that the constitution should be interpreted on its face, and that men were men and thus slaves born in the United States should enjoy the rights of citizenship. That’s the belt. After the war the 14th amendment, nonetheless, explicitly spells out and defines that a person born in the United States is a citizen of the United States and of the state where he or she resides. That’s the suspenders.

The 14th amendment was crafted just incase originalist doctrine held sway.

The degree of validity of the doctrine is debatable. But what the Civil War did was eliminated the notion that “who is and who isn’t a person” regardless of what the constitution implies about persons “is evolveable from the notion of the original creator of a principle”.

Maybe an originalist approach is valid when considering what the document says, but it is not valid in considering who a person is – though I’m not versed in this issue enough to say either way. Our definition of who a person has evolved and so contemporary society should no longer be shackled to a medieval definition of who a person is or isn’t – contemporary society gets to decide who a person is, even if medieval American society defined what a person could or could not do.

Scalia may or may not be right in pursuing an originalist view point on some aspects of the constitution, but on who a person is, that certainly has been unshackled from originalist doctrine – by the civil war and by the passing of post Civil War amendments, and the passing of the womens right to vote amendments earlier in the century. But the reoccurring presence of medieval mindsets, like that of Scalia, from time to time, is reason enough for Women to want to pursue a set of suspenders, to reinforce their rights under the constitution, just uncase the Scalia’s out there some how are able to strip away the belt. The existence of suspenders has always reinforced the belt as as an untouchable fundamental notions of law in the United States.

An important point here is that the suspenders are needed to defend the rights of some humans from socio-paths. By now, a normal person, with a conscience, wouldn’t force a black person or a woman to have to argue that they are a person and are entitled to all rights under the constitution that the constitution says a person enjoys. Only a sociopath would force a person to have to argue that they are a person and that they are entitled to the rights of a person. That’s what Scalia is doing, under the pretext of the originalist doctrine. Obviously such a sick mind shouldn’t be sitting on the supreme court, arguing that his sickness should be the doctrine by which the entire country views the constitution.

Of course I’m not surprised at those who support Scalia. Sickness is as sickness does.

TK said ^ what I was going to say, about how we have to incorporate clarifications into the constitution to satisfy conservatives trying to stop history.

Also, there was a massive fight over the income tax in the Populist/Progressive eras.

http://en.wikipedia.org/wiki/Pollock_v._Farmers'_Loan_%26_Trust_Co.

Note: Conservatives, including Scalia are most hypocritical in the application of “originalism”.

Scalia will ignore the doctrine if it doesn’t suit him.

For religious fundamentalist (aka Fundies), if you recall the election of 2004, the Dredd Scott decision is “dog whistle” politics that Bush dropped, out of nowhere/left-field/out-of-context, in the middle of one of the debates.

For Fundies, the Dredd Scott decision is a bell ringer because Dredd Scott was ruled not to be a person in a legal sense, thus, Fundies like to draw the parallel that just as the Supreme Court erred in not calling Dredd Scott a person legally when he obviously was a real person, the Supreme Court is currently erring in not calling a fetus inside the first trimester a person.

So here you see Republicans/Conservatives/Fundies selectively making use of Originalism. No doubt, Scalia, given the chance, will drop his originalist dogma the very minute he gets a chance to vote on abortion or some other darling issue of the movement conservative establishment.

The Fundies, of course have a point, but the two situations are not the same, or, they are distinguishable. First, English Common Law has not referred to the fetus before quickening (i.e. the first trimester) ever, for legal purposes (as in I hit a pregnant women in the stomach before quickening, if the fetus dies, then it’s not a homicide, if I hit her after quickening, and the fetus dies, then it was considered a homicide in Common law).

Also, the issue of abortion isn’t necessary about deciding who is or isn’t a person: if the unborn is a person, so is the mother. Under the doctrine of ‘one persons rights end (or are limited to) where another persons rights begin’ then its a matter of whose rights prevail in a colission: the infants or the mothers? Well, after the first trimester, the infants (a woman cannot knowingly or recklessly drink alcohol and poinson her unborn child without committing battery), but before the first trimester, the Women’s interest prevail, and finally, if the women’s health is at issue, again the women, and some women will tell you all pregancies are a risk to women’s health (that is another issue altogether).

In the case of Dredd Scott, there’s only the one person involved, Dredd Scott. In the case of abortion there’s two persons involved, the women, and an unborn child who, for lack of a better term is in a dependent role upon the personhood of the mother. The infant is innocent of all acts and intentions, but it must impose a burden on the mother to carry it to term – in a sense his personhood only exist while he is able to impose on the mother. So the two cases aren’t identical, but for fundies the issue currently is, whether or not the infant is a legal person. The Woman doesn’t count.

If your curious of how Scalia would rule on abortion, just consider what he did here: declare that women don’t count because they weren’t considered a person by framers of a constitutional amendment that occurred in the last half of the 19th century.

He doesn’t declare that women “don’t count”, he simply says, undoubtedly correctly, that they weren’t envisioned as being included as within the scope of the law by it’s framers and enactors. In 1920–years later–it was still not considered an restriction of equal protection of laws for women to be unable to vote. Hence the need for the Nineteenth Amendment. Even in 1970, discrimination against women was still entrenched enough for Several States to pass the Equal Rights Amendment. Of course, the whole concept of “Gay rights” was unknown at the time of the 14th Amendment and would have been regarded as perverse and abhorrent, if suggested.

I think that many people today would oppose the Gay equivalent of the Equal Rights Amendment, if one were proposed. Aside from the military and Gay marriage issues, there are various professions and situations in which being Gay is an issue for other people. For example, I might prefer not to have a Gay coach in my locker room, just as I might prefer not to have an opposite sex coach in the same position (and for the same reasons, basically).

Of course, Scalia would oppose the Roe vs. Wade decision anyway, because it stands for every liberal trend in Jurisprudence that he rightly disavows. It “discovered” a new “Constitutional” right which was never mentioned in the Constitution *anywhere*–even by implication or analogy. Based on this imaginary right, they constructed actual legislation, with the “Three Trimester” system and permissible actions for each trimester. Again, this was done out of thin air, with no legislative or Constitutional support. It’s simply the worst example of Judge-made law and Constitutional jurisprudence ever written.

It “discovered” a new “Constitutional” right which was never mentioned in the Constitution *anywhere*–even by implication

The Roe v Wade majority actually went over this, you know. The decision was based on Griswold, of course.

The principal thrust of appellant’s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal “liberty” embodied in the Fourteenth Amendment’s Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); id. at 405 U. S. 460 (WHITE, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S. at 381 U. S. 486

You seem to think we need a Constitutional Amendment to guarantee the right to contraceptives or the right to eg. have someone put a finger up our ass without violating laws.

The conservative argument was, is, and will be entirely wrong on this and history is continuing to pass you guys by. The 9th means something.

And the majority opinion in Roe was damn good juridical thinking. Rehnquist’s dissent was wrong then and he and the conservatives just dug the hole further in Lawrence.

I’m familiar with the bizarre reasoning of the chain of privacy cases starting with Griswold. Any time a Judge starts talking about “penumbras and emanations”, you can bet that he’s saying “What I want to find isn’t really in here, so let’s pretend that it is”. And yes, if we want to *Constitutionally* guarantee contraception and/or anal sex as *Constitutional* rights, than we would need some kind of amendment. I’m not even sure that there’s a *Constitutional* right to any kind of sex, in fact I tend to doubt it.

There’s a saying “bad cases make bad law”. When the legally sound result isn’t what the judge thinks is fair, legally weak (but possibly fairer) decisions often result. Unfortunately, they also make precedent. Griswold was a terrible law, so the SC made a sensible, but legally terrible decision to overturn it. Likewise, Roe may have been convenient for women’s rights activists, but that doesn’t make it a good example of Constitutional law. It’s the climax of a string of bad decisions.

if we want to *Constitutionally* guarantee contraception and/or anal sex as *Constitutional* rights

Nice dodge there, Captain Conservative.

What’s also funny is Scalia invented the right of self-defense out of whole cloth in his Heller decision.

“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

http://www.law.cornell.edu/supct/html/07-290.ZS.html

which is utterly counter to the originalism and textualism, as the minority opinion showed.

Scalia is an utter intellectual fraud.

This guy :

http://federalistblog.us/2008/07/dc_v_heller_was_scalia_honest_with_the_facts.html

tears Scalia a new one over Heller. I love his intro:

“[T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states.” —Antoin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997)

(which precept Scalia reversed in his Heller decision. What a hack.)

Intense dislike of persons one doesn’t know personally is rather unrefined, but this is really too much. Scalia is a very bad man and an idiot. Somebody make him go away, pretty please.

The points I tried to make is: Originalism is probably a valid way to approach the constitution as to what the constitution says can and cannot be done by government, individuals, and so on, but Originalism, like everything else in life, has its limits, and history has taught us, it can tell us what can and cannot be done, we don’t let Originalism tell us WHO is a person and who is not.

History has shaped this dicta: we can look to originalism to tell us what (though we certainly shouldn’t limit ourselves to that, but we can include this perspective into analysis), but not who.

It serves us no purpose to take an antideluvian view of who the constitution tells us is or is not a person – in fact, such attempts lead to hardship and even war. So antideluvian originalist views of who a person is is now, no longer valid in constitutional analysis.

I don’t view Scalia as a bad person. He’s just a sick socio-path, who also happens to be full of himself. Originalism is a pretext that allows him to manifest his sickness as if it’s perfectly valid and justifiable view – an example of how full of himself he is. It is not a valid view. It is sick.

Scalia would have us view Women as no persons from a legal perspective, (yet corporations are?) – because it serves his purpose, yet he abandons this perspective when it does not.

Scalia’s analysis can cut both way. I think it might be perfectly valid to classify socio-paths as non-humans in the legal sense. Then they have no rights under the constitution. They can be institutionalized, even incarcerated, and have no redress – because they are non-persons in the legal sense. Among other things, their right to vote should be denied. Bye-Bye socio-paths.

The right of privacy was an unemumerated right at the time of the framing of the constitution. Remember, if the right is not enumerated, it is retained by the people. But to reinforce that the notion existed, Common Law of Torts has always recognized a right to privacy accompanied with a right to peace and quiet. The third amendment draws attention to the fact that the framers did perceive a right to privacy and were weary of it being violated, most especially during times of war, thus the need for ‘suspenders’ in the third amendment.

Scalia would have us view Women as no persons from a legal perspective

He’s saying we can’t look to the Constitution for this and must use government to make these definitions via the democratic process.

That’s fine as far as it goes, except for the obvious fundamental flaw — minority rights should never be up for a vote.

Thus, Democracy (perhaps occasionally but certainly repeatedly) needs an extra-democratic check and balance, what we have established in the Judiciary. We should amend the constitution to make Marbury more explicit : )

GK and Scalia are all wet on this whole rights issue. We have plenipotentiary rights via the 9th Amendment and the Constitution only empowers government to reduce these rights via due process subject to the “necessary and proper” and “rational basis” tests.

This is not judicial error, it is brilliance. It expands liberty and results in a progressively better government.