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No Elephants Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Oct-14-13 06:59 AM
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Scalia, who describes himself as an originalist, said the 14th amendment prohibits
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Edited on Mon Oct-14-13 07:04 AM by No Elephants
discrimination against women.

Not only did he say that, but he said it most emphatically.

What is originalism?

In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution.<1> It is based on the principle that the judiciary is not supposed to create, amend or repeal laws (which is the realm of the legislative branch) but only to uphold them.<1>

The Constitution is way too hard to amend. Subject to that, it at least represents what quite a few Americans agreed to when a good number of them still put country and people above party. Choosing between "original intent" and the whim of the current group of SCOTUS Justices is a Hobson's choice. But, given those two alternatives, which are my only realistic alternatives, I will go with original intent.

Federal judges are appointed, not elected. The only way to remove them is action on the part of the House and Senate, neither of which I trust as far as I can throw the Capitol building. Our voting system, as bad as it is, it is at least theoretically responsive to a majority of the people. Federal judges are in their own universe, more protected even that incumbent politicians. Whether the Court leans left or right depends quite a bit on when sitting Justices happen to retire or die, almost sheer accident. And, as the number of 5-4 Supreme Court decisions have shown, they are far from objective and apolitical.

So, I am not willing to say that the will of the Justices should supersede the will of voters who ratified the Constitution and its various amendments.

Problem is, there was not a single "original intent," as Scalia pretends. Nor does Scalia seem to decide cases based on "original intent." He says he does. He may actually believe that he does, though I doubt even he believes it.

He says that the Framers in 1789 intended for the First Amendment to protect speech consisting of corporate money. Bullshit. But, how could anyone expect a liberal like me to say otherwise?

Because I am candid and principled, as I will now prove by saying that Scalia's comment that the Fourteenth Amendment prevents discrimination against women is also bullshit, maybe even bigger bullshit than the Citizens United decision.

Now, let's look at originalism.

When on earth do activists and politicians, all agree amongst themselves on every nuance of every word? Never, that I know of.

The Federalist papers is not the be all and end all of what the Framers intended. They are only what Madison and a few others, but mostly Madison, wrote to convince New York to ratify the Constitution. And, I believe that the authors of the Federalist papers, mostly Madison, also wanted that one view to go down in history as the "real" version of the Constitution. It isn't. It's mostly Madison's view. And much of the language of the Constitution was, duh, compromise language, just like the language of any law today, meaning it was always intended to be open to interpretation.

Moreover, even if the Framers had a single view, it doesn't matter. The Framers were far from sufficient to ratify the Constitution; and the Constitution did not become the law of the land until it was ratified. Ditto every amendment to the Constitution. The original intent of every single legislator in the original 13 colonies matters almost as much as the intent of the Constitutional Convenetion (again, even assuming that every member of the Convention was in agreement with all the others).

When it comes to the First Amendment, that is part of the Bill of Rights, which the Framers did not even put into the constitution. The Bill of Rights was something that the colonies demanded as a condition of ratifying the Constituion, not anything the Framers were offering the colonies or the people. The rationale supposedly was that the Framers always intended for those things to be between state government and the people. Whatever. Fact is, the Bill of Rights was the brainchild of the people, not the Framers. People, I might add, who had just come off a revolution. If I were a Framer, I would not have crossed them, either.

So, raise your hand if you think that corporate money was any part of the speech for which farmers and shopkeepers and the like demanded Constitutional protection, even if that meant money would corrupt the power of what little voting power the Constitution granted people.

That discrimination against women is covered by the original intent of the Fourteenth Amendment is even sillier. The only women who had any legal rights at all when the Fourteenth Amendment was ratified were unmarried or widowed women. All other women had to have the consent of their father or their husband before they could even run up a legally binding tab at the greengrocer's. And even unmarried or widowed women could not vote.

The vote, of course, was taken care of by the women's suffrage amendment, but even that did not take care of any other form of discrimination against women, like excluding them from various professions or the military, etc. Just the vote.

So, Scalia's contention that the original intent of the Fourteenth Amendment was to prohibit discrimination against women is even more preposterous than his contention that the original intent of the First Amendment was to give corporate money the same (or greater) protection as political speech by individuals. Who do I say "greater?" Because individuals can be sent to jail and executed, while corporations cannot. Corporations can be dissolved, involuntarily, but that is not exactly equal to suffering electrolution, now, is it? And reviving a dissolved corporation is a hell of a lot easier (and faster) than resurrecting an individual who has been put to death

Scalia is a master of deception, not a master of jurisprudence. As a justice, he is every bit as ridiculous in 2013 as the hats he insists on affecting.

I am sorry, Enthusiast, that I cannot make it meaner than that. For me, though, calling a SCOTUS justice a master of deception, not of jurisprudence, is intended to be pretty mean. After all, the disingenuous turd has our lives and liberties in the palm of his nasty-looking hand and acts as though he has integrity, when he is nothing but a political hack who doesn't even have to bother getting elected.

Do I want discrimination against women? Of course not. I want the ERA to become the law of the land. Even more than that, I want some integrity on the SCOTUS. And, if I can't have either, I can at least protest Scalia's rank dishonesty.
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