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

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  •  Strictly speaking, he's correct that (1+ / 0-)
    Recommended by:
    cai

    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-)
      Recommended by:
      cai

      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.

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