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View Diary: On Constitutional Interpretation: Originalism v. A Living Constitution? (286 comments)

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  •  I have never agreed with originalism (none)
    or strict construction or whatever silly phrase you want to apply.  But, I just wanted to ask if one was to buy into Scalia's philosophy (because that is all that it is) how then does one reconcile almost 100 years of jurisprudence wherein the Court has "found" certain rights to be fundamental and thus entitled to be protected absent the most compelling interests such as MARRIAGE, THE RIGHT TO REAR ONE'S CHILDREN, THE RIGHT TO TRAVEL, THE RIGHT TO BURN A FLAG, THE RIGHT TO PRIVACY/CONTRACEPTION/ABORTION/SODOMY.  

    Marriage has always been my favorite rebuttal because it's so simple: where does it say in the Constitution that marriage is a protected, fundamental right of all of us. The Court held in Loving v. Virginia (I am guessing roughly seventy years ago) that a state law that prohibited miscegenation was unconstitutional because it interefered with one's right to marry.  But, nowhere in my Constitution does it mention marriage or a whole host of well recognized rights.  Does Scalia (and the rest of the repubs) agree that marriage is not a fundamental right?  

    I know that Scalia has recognized the concept of fundamental rights, and I believe he is the author of the current definition of how we find them (which is a tortured and subjective definiton), but my point is that none of it is in the Constitution. After all, if they wanted to protect marriage they could have written into the document.  But, then it is not a Constitution it is a legal code-John Marshall.  A man I will trust more than a thug like Scalia.  

    By the way, my other favorite nugget of the ridiculous right in this country is when they oppose "legislating from the bench."  It is the stupidest, most vapid phrase.  All judges use interpretation to make their decisions.  All judges use their intellect and powers of persuasion as well as precedent to arrive at a decision.  That is what judges do.  Judges are not, and have never been, rubber stamps for the legistature, and yes sometimes the Court will find laws unconstitutional even when one person is in opposition to the will of the majority or every other person in this nation. That is what is meant by INDIVIDUAL RIGHTS.  

    Please everybody oppose Roberts.  In fact, let's all pray that there is never a confirmation hearing.  Instead let's pray that by September we have begun impeachment hearings.  I know that this may sound a little idealistic, but has anyone listened to Larry Johnson, Pat Lang and Jim Marcinkowski lately.  They have some real good points why shrub should not get any nominations.
    Thanks for listening.  

    •  Loving v. Virginia (none)
      was 1967.

      Sacry, no?

      blog | These people looked deep within my soul and assigned me a number based on the order in which I joined. -- Homer Simpson

      by folkbum on Sat Jul 23, 2005 at 02:19:21 PM PDT

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    •  Loving v. Virginia (4.00)
      The Court held in Loving v. Virginia (I am guessing roughly seventy years ago) that a state law that prohibited miscegenation was unconstitutional because it interefered with one's right to marry.

      Loving was decided in 1967, which is not all that long ago at all, frighteningly enough.

      Regardless, I agree that we need to oppose Roberts. He just issued a dissent in a Fourth Amendment case, U.S. v. Jackson, that is chilling. Roberts would give the police almost unlimited discretion in warrantless searches, just as he gave the police unlimited discretion in the "french-fry case."

      I'm very worried by this "originalism" nonsense that Scalia and others have been pushing. It's impossible to know what the founders would have done about something like, say, the regulation of corporations. Corporations didn't exist in anything like the form we now have until around the middle of the 19th century. And yet, Scalia has no problem giving them constitutional rights!

      Originalism has become little more than a way to read one's own values in to the Constitution and then claim that the founders agreed. Roberts, in the "french fry case," hinted at his willingness to manipulate history to justify his reasoning.

      When Roberts was originally nominated, I had heard positive things about him personally and had found him quite charming in person. I wanted to take a breathe before jumping on the "oppose Roberts" bandwagon.

      But now, I'm persuaded that in addition to questions about Roe v. Wade, we need answers to questions about Marbury v. Madison and Brown v. Board of Education. As others have written, it is precisely because of his charm and intelligence that Roberts is potentially more dangerous than Scalia, who has some trouble building support for his positions. We need to know where this guy stands on the role of the judiciary before allowing him on the highest court in the land.

      •  Speaking of corporations (none)
        I have never understood the reasoning in the case decided by the Supreme Court giving corporations the same rights as individuals.

        Can someone here enlighten me on this?  That particular ruling seems to have caused an enormous amount of trouble, especially in the area of free speech.

        •  Corporations do not... (none)
          have the same rights as individuals.  They cannot marry, they cannot vote, they cannot have an abortion, they cannot be drafted into war (technically), etc.  There are times in our interpretation of the Constitution where the word "persons" has been used, that the SCOTUS has interpreted persons to include corporations.  This, however, is quite limited.

          "The sharpest criticism often goes hand in hand with the deepest idealism and love of country." -RFK

          by apmiller on Sat Jul 23, 2005 at 06:10:20 PM PDT

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          •  how limited? (none)
            You've just inadvertently hit the nail on the head.  Corporations don't care about these divisive social issues, they have no stake in them and are not effected when they become hot political issues.  Therefore there is no problem with political cooperation.  

            What corporations, like all social organizations, want is to survive, and thrive on profits. So while the average American is caught up in the abortion and gay marriage debate, corporations carry on their merry way.  There's a lot of history behind the precedence of corporations trumping humans, they were "natural persons" before women were, and before the 14th amendment was ever applied properly to African-Americans.

            But they've used the right of persons to free speech to allow for political activity like financing and lobbying.  They've used 4th amendment privacy concerns to prohibit inspections of facilities and records for the common good.  They've used 14th amendment protection against discrimination to overturn laws encouraging small businesses and on and on.  I've barely typed the tip of the iceberg.

            Thom Hartmann quotes Justice Hugo Black on p. 157 of his book.  Writing in 1938, Black said:

            "Of the cases in this court in which the Fourteenth Amendment was applied during its first fifty years after its adoption, less then one half of one percent invoked it in protection of the Negro race, and more than fifty percent asked that its benefits be extended to corporations."

            "Fear is an -ism...did you notice the transition from Communism into Islamic terrorism?" Lee Raback, Warsaw Pack "Doomsday Device", written pre-9/11

            by lizah on Sun Jul 24, 2005 at 01:15:06 AM PDT

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            •  I have this nagging... (none)
              problem that I developed in law school and that is the need for evidence.  I do not agree or disagree with your post because you cite what seems to be specific examples but forget to cite the specific example.  Do you have case names or citations?  Also, the Black quotation is good but I don't really understand it without some context.

              Corporations have done many evils in their history.  They have never, however, been "natural persons" as you suggest.  Despite corporate evil, they are necessary to our society.  They provide us with jobs and LOTS of tax dollars.  I am sure they avoid through their Grand Caymen subsidiaries as much as they pay but that is a problem for another day.  If you take away a corporation's right to not be subject to unreasonable searches and seizures; if you take away their right to contribute to the political process; if you take away many of the Constitutional protections afforded to corporations you will undoubtedly create a disincentive to the formation of corporations and that would be catastrophic.  If you shut down GM, GE, Boeing, etc. would you like to be the person who tells those hundreds of thousands, if not millions, of workers that they no longer have a job?  Would you want to be the one who tells their families?

              "The sharpest criticism often goes hand in hand with the deepest idealism and love of country." -RFK

              by apmiller on Sun Jul 24, 2005 at 04:37:18 AM PDT

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        •  Corporate Personhood (none)
          I forget where I read it, but the Supreme Court opinion which supposedly gave corporations citizenship status, Santa Clara County v Southern Pacific (1886), actually does no such thing.  Apparently, it is the summary of the opinion, written by a Presidentially appointed clerk with strong corporate connections, that makes the conclusion.  I haven't gone and read the decision itself, though, so I'm not sure.  If this story is true, it goes a long way toward explaining why corporate personhood makes no sense.
          •  It is true. (none)
            Thomas Hartmann's work on the subject suffices to not only prove the point... but to underscore the evils arising from that mistaken belief.

            Here's his site on corporate rule.

            "Too many policemen, no liberty; Too many soldiers, no peace; Too many lawyers, no justice." Lin Yutang (1895-1976)

            by ogre on Sat Jul 23, 2005 at 10:34:41 PM PDT

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          •  SC refused to rule on it actually (none)
            I read this too, then went and read the decision.  It's not there.  In fact, the Court says

            "...  These questions belong to a class which this court should not decide unless their determination is essential to the disposal of the case in which they arise.  Whether the present cases require a decision of them depends on the soundness of another proposition, upon which the court below, in view of its conclusions upon other issues, did not deem necessary to pass."

            For newcomers, Southern Pacific Railroad was challenging taxes applied by Santa Clara County.  They had 5 lines of defense, one being that the 14th Amendment should be applied because the California tax law violated the 14th Amendment, not being an equal burden.  The Circiut Court agreed with this, but the Supreme Court refused to rule on it, deciding instead on other issues.  The Court Reporter wrote it in the headnotes of the first published edition, then it was later cited, but the decision itself was never made.  Nuts, eh?

            The link to Thom Hartmann's site is below, I recommend reading it.  We need fundamental legal reform in the U.S.

            "Fear is an -ism...did you notice the transition from Communism into Islamic terrorism?" Lee Raback, Warsaw Pack "Doomsday Device", written pre-9/11

            by lizah on Sun Jul 24, 2005 at 12:55:42 AM PDT

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