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View Diary: Inexpert thoughts on today's Supreme Court arguments (72 comments)

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  •  I don't think we disagree (1+ / 0-)
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    penguins4peace

    As I wrote above:

    United States history is replete with examples of our nation not living up to its ideals, and all too often even the Supreme Court may overlook the inherent unconstitutionality of a law before ultimately arriving at that same conclusion in a later case.
    But IIRC: Scalia has defined himself as following "original meaning" rather than "original intent". As I remember him describing it, original meaning would incorporate via precedent those same blind spots (e.g., segregated schools) that original intent would strike down, because then-contemporary laws and practices could be used to clarify what the original meaning of a section of the Constitution might have been. I believe Scalia has taken this approach many times. That still leaves him needing to explain why he thinks Plessy was wrong and Brown was right.

    Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

    by Nowhere Man on Wed Mar 27, 2013 at 10:20:15 AM PDT

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    •  Right (2+ / 0-)
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      Nowhere Man, Clem Yeobright

      I was responding to Clem Yeobright's statement that Scalia is consistent in saying the 14th Amendment should apply to race, but generally not to other things like sexual orientation. I made the same point myself, but on further reflection it doesn't hold. Under an originalist view of the 14th Amendment, Plessy and Loving would go the other way.

      You are right that Scalia has criticized "original intent" on the theory that you can't identify a single intent. Thus original meaning, in which you look at the words in the context of the times when they wrote it, to divine the meaning as they would have understood it. This approach is even more hardline; there is no easy way to square that approach with Brown and Loving. 1868-era laws and customs did not promote integrated schools or interracial marriages.

      Republicans...think the American standard of living is a fine thing--so long as it doesn't spread to all the people. And they admire the Government of the United States so much that they would like to buy it. Harry S. Truman

      by fenway49 on Wed Mar 27, 2013 at 02:12:31 PM PDT

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      •  Thanks. Sorry I didn't check the context. (n/t) (0+ / 0-)

        Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

        by Nowhere Man on Wed Mar 27, 2013 at 02:59:49 PM PDT

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