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View Diary: Scott Brown's model justice: Outlawing 'homosexual sodomy' is a no-brainer (86 comments)

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  •  I look and I look (6+ / 0-)

    and I can't find anything about sodomy or homosexuality in the Constitution...

    Does Scalia have a special edition?

    •  Did you check the back? (1+ / 0-)
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      Think this is my fourth donation to Warren.

    •  Strictly speaking, he's correct that (1+ / 0-)
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      the Constitution as originally drafted (and the 14th amendment, when adopted) didn't intend to legalize homosexuality.  Anyone with even a basic understanding of history knows that (a lot of the finer points of "originalism" as a philosophy are specious and impossible to verify, but broad strokes like that are certainly true).  The question is whether you believe in consciously expanding those definitions, which Scalia claims to regard as judges exceeding their power (in practice, of course, one can quibble with many of his own decision in that regard).

      •  There's the 9th Amendment (1+ / 0-)
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        And it's pretty broad.

        •  It's broad if (as we tend to) you take (0+ / 0-)

          the view that new rights can be added in there as societal norms change.  If you take the view that it shouldn't be read to include anything that the adopters of the Constitution would not have had in mind, then it's a lot narrower, and that's Scalia's view -- and within that frame, he's correct (the late Chief Justice Taney took a similar view, on rather more spurious grounds).  I don't think the frame is a particularly workable or useful one for our society, obviously he doesn't agree.  But we're winning that argument.

    •  Yeah, the one that leaves out the 9th amendment (2+ / 0-)
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      cai, Cassandra Waites

      Which is beautifully and simply worded:

      The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
      Scalia is a staunch enumerated rights guy. Which is sheer idiocy on its face.

      "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

      by kovie on Fri Oct 05, 2012 at 07:14:03 PM PDT

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      •  Again, on the adoption of 9th amendment, (1+ / 0-)
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        nobody would have thought one of those rights was gay rights.

        To be clear, I think Scalia's personal opinions are pretty repugnant, and the whole originalist philosphy in practice is so riddled with inconsistencies as to be basically meaningless (as well as highly questionable from a social justice perspective; the common law was meant to evolve under judges over time, but the introduction of written constitutions giving them the power to strike down laws that makes people antsy about that practice), but he's not really being inconsistent to say that an originalist view of the 9th amendment doesn't involve protections for gays.

        •  I give a rat's ass what those slaveowning (0+ / 0-)

          tightasses thought about such things. If they didn't exlude such rights and they weren't otherwise exluded through the exlusion of other rights, then they exist even if no one would have thought this at the time. I know of no provision in the constitution that denies people the right to be gay or in any way speaks to it. Which means that laws passed to deny such rights are unconstitutional, and have thankfully been found to be so, at last, whatever jackass Scalia thinks.

          Talk about hypocritically legislating from the bench. What an asshole.

          "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

          by kovie on Fri Oct 05, 2012 at 07:32:04 PM PDT

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          •  I don't think you can really describe (0+ / 0-)

            refusing to adopt a new view of the Constitution as "legislating from the bench" (he's done that in plenty of other cases, to be sure, however he squares that with his supposed philosophy).

            •  He hates homosexuality (0+ / 0-)

              And is imposing his own prudish and intolerant social beliefs onto others. That's actually his reasoning, that society has a right to defend itself from unpopular and unliked practices. That's legally incoherent. It's legislating from the bench.

              The law that Lawrence v. Texas overturned was unconstitutional. It took over 200 years for society and the law to have the moral guts and legal sophistication to do and find a constitutional basis to do it, but they did it in the end. Scalia can't deal with that, and his only reasoning is he finds homosexuality repugnant.

              Tough shit on him.

              Of course, we're dealing with a man probably still struggling with the elastic clause and implied powers. Marshall would crush him like a bug.

              "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

              by kovie on Fri Oct 05, 2012 at 07:46:13 PM PDT

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              •  Scalia argues for an originalist understanding (0+ / 0-)

                of the Constitution (as well as being, as you say, a legal moralist in the mode of the largely discredited Lord Devlin).  He's not wrong that the Constitution as drafted and adopted wouldn't have justified Lawrence, so I really can't call it legislating from the bench even though he's also a huge bigot, because in this case originalism and his bigotry are in sync.  He didn't join in breaking new ground.

                •  The constitution as drafted and adopted (0+ / 0-)

                  began to take on a new life before the ink was even dry, no matter what the Jeffersonians thought. Marshall might have rejected Lawrence as well (more likely, he would have been bewhildered as to such a case coming up in the first place), but he would also have rejected Scalia's originalism. As have most jurists through the years, because it's absurd.

                  There are two points being argued here, beyond the specific merits of Lawrence. One, that lawyers and jurists of the early republic would have rejected Lawrence. I agree on that. And two, that these same people would have agreed with Scalia's narrow view of originalism as a limiting concept in constitutional interpretation in all matters. The Federalists would certainly have rejected that.

                  Nearly all members of that generation were less liberal than liberals today, on specific issues, because their times were less liberal. But not all were equally conservative when it came to general theories of constitutional interpretation.

                  "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

                  by kovie on Fri Oct 05, 2012 at 08:56:56 PM PDT

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