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What’s next in the intellectual bloviating of conservative activist SCOTUS Justice Antonin Scalia – is slavery OK? We already know he doesn’t believe in the right for two consenting adults to engage in anything other than PIV sex.
He was interviewed recently and let loose this flaming pile of horseshite:
In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.
What do you do when the original meaning of a constitutional provision is either in doubt or is unknown?
I do not pretend that originalism is perfect. There are some questions you have no easy answer to, and you have to take your best shot. … We don’t have the answer to everything, but by God we have an answer to a lot of stuff … especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide, and I could go on. All the most controversial stuff. … I don’t even have to read the briefs, for Pete’s sake.
Amanda Terkel at Huff Post covered the reaction to “Little Tony’s” latest belching of retrograde thinking.
For the record, the 14th Amendment’s equal protection clause states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” That would seem to include protection against exactly the kind of discrimination to which Scalia referred.Marcia Greenberger, founder and co-president of the National Women’s Law Center, called the justice’s comments “shocking” and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.
“In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that’s up to them,” she said. “But what if they want to pass laws that discriminate? Then he says that there’s nothing the court will do to protect women from government-sanctioned discrimination against them. And that’s a pretty shocking position to take in 2011. It’s especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection.”
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On the upside…This also means the 14th Amendment does not protect against anti-Italian discrimination. Anyone for a homeowners’ covenant promising not to sell to people whose last names end in a vowel?
One of the ORIGINAL ten that he claims to care so much about already routes his argument.
The text of the ninth amendment is as follows;
So much for “originalism”.
if he thinks he’s superannuatedthere is nothing from stopping his redundant ass from stepping down.
fixed that for ya, Scum-lia!“I don’t even read the briefs, for Pete’s sake.”
He’s a Papist, tooHow can we trust that he won’t turn the government over to Rome when ordered to do so? After all, the Founders were all Protestants, so clearly they intended only Protestants to have freedom of religion.
I don’t think the English language has any word sufficient to describe my contempt for Scalia. “Abjectly ignorant” and “willfully stupid” start to come close, though.
ERA NowOr an amendment that says that the SCOTUS shall not be orginalist.
Arms do not just mean blackpowder muskets and swords, for example. When the definition of something changes, the new definitions apply, not the old ones.
Classic stuffScalia and the practice of originalism is ridiculous!
I hope Scalia eat one cannoli too many and keels over of cardiac arrest, the sooner the better.
If the Constitution is not a living document…As Justice Scalia always says, then shouldn’t he be relieved of his duties. After all the founding fathers had no idea Supreme Court justices would ever serve 30-40 years (during “good behavior”). Life expectancy and quality of later life in those times would trump that length of “service”. Most of the first batches of justices served around 10 years.
Second, what the hell does he think of judicial review. There is nothing in the Constitution about it. Only the first five of the 13 ratifying states even had something similar to judicial review in their Constitutions. None of us would give a damn about Scalia’s blathering if the Supreme Court didn’t have judicial review (which the Supreme Court gave itself in the early 19th century).
What a disgrace to the bench!
In the early years of the republic, nobody ever thoughtthat one day a conservative Catholic apparatchik, who takes his marching orders from the conference of Catholic bishops (if not directly from the Vatican), would hold a seat on the Supreme Court and use it to undo every bit of progress and equality the nation has achieved. Ergo, Scalia should be impeached immediately if not sooner. QED, with his own logic.
Scalia is 75 years old……the average male life expectancy in America is 75.6. Let’s hope he’s average.
He’s the poster boy fora mandatory retirement age of 75- 80 for all government employees and a single 20 yr term for all federal judges.
Who’d haave guessedthat a devout practitioner of a religion whose leadership regularly slams women into second place would find a Constitutional reason to do so?
D’ye suppose that Chief Justice John Jay was correct and that the Constitution did not apply to Catholics because as the servants of a foreign nation, they were not citizens?
“Legal Scholar”?I remember that phrase coming up repeatedly in his nomination hearings. If you’ve ever read any of his opinions, you’d know he’s a joke as a jurist. Laws and precedents are pretty much irrelevant to his thinking — he’s a conservative hack, and no more. His “legal scholarship” is on a par with Paul Cameron’s “research.”
But he does have this amazing talent for reading the minds of people who have been dead for a hundred years or more.
BTW,he smokes and drinks… a chosen lifestyle along with his 2,000 year old rituals.
ActuallyActually I believe he’s already stated that he feels the constitution comes below his deity.
Sounds like OT biblical viewsya know, kinda like Sharia Law? Next you know, he’ll want to bring back selling his daughters into slavery, but only as long as he makes a tidy profit…
Actually 18 year…So they can be staggered every two years. And if one dies, the President can only appoint someone for the remainder of the previous occupants term. But that would require a constitutional amendment.
And now Scalia will “teach” the new Congress about the Constitution?What makes him the National Constitutional Expert?
Why doesn’t Congress simply read the Constitution and make their own determinations, as they were elected to do?
There are after all Three Branches of Government you know?
Is there anyone from the Legislative or Executive Branches “teaching” new Supreme Court Judges?
Hey TonyThe Constitution doesn’t recognize GREASEY IGNORANT WOPS LIKE YOU either!
Well…Look at what we’ve got in congress. Louie Gohmert, Michele Bachmann, Virginia Foxx, Daryl Issa… The assumption that they can read is shaky at best. If Junior Samples were still alive, they make him Speaker.
Sadlythey aren’t the ones Scalia thinks need to be taught about the constitution.
No Supreme Court justice is an originalistEven those who claim they are. http://www.scotusblog.com/wp-c… would be the evidence that Scalia doesn’t abide by original definitions when it suits his interests. From his opinion:
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
The intrinsic reason why none are is that an originalist would deny Marbury v. Madison, from which a significant percentage of the Supreme Court’s current power originates (this is, for example, presumed in Scalia’s opinion above – otherwise there wouldn’t be a constitutional question before the court in the first case).
An inclusive ERA, though, is a very good idea.
Scalia’s pointIs that the people who wrote and voted on “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” did not consider women to be “citizens” or “people” and retroactively applying modern interpretations of these words to old language is wrong.
If you wanted to extend protection to women, you would have to lawfully amend the constitution to redefine person or citizen (as the 14th actually did redefine citizen to include all men born in the US). You can’t just say “time has marched on” and let judges redefine the terms.
Say what you will about the practicability and/or desirability of this interpretation, but it is not inconsistent.
As for the 10th, that reserves only the rights prohibited to the states to the people. It does not, by itself, in any way protect people from states doing anything not mentioned in the constitution to its people.
Not so sure about that.The 14th guarantees all “people” (including Italian men, but not women according to Scalia) equal protection of the laws. Which means that if (and only if) an anti-racial-discrimination law to protect blacks from housing discrimination exists, it must also protect Italians equally.
The 9th has always been pretty shoddyIt basically says “this document does not take away any rights you happen to posses unless explicitly stated otherwise.” To use it, you would have to show that you had the right to begin with. It’s clearly not a blanket grant of the right to do anything not forbidden in the constitution, else people would have a right to trespass, for instance. It’s not a source of any rights at all, just a negation of preemption.
The distinction here is this:These new arms, forms of speech, etc. did not exist when the constitution was written.
Women, of course, did. If the original meaning had been to include women, we would know. We have no way of knowing what the original authors of the second amendment would think of modern weapons, so we have to guess. But we KNOW they meant to exclude women.
Except thatthe fourteenth amendment does not specify race, gender, sexual orientation, or gender identity/expression. It specifies all persons born or naturalized in the United States. If they wanted a narrower definition, they should have used a narrower term.
It guarantees rights that are implied but not spelled outsuch as the right to privacy implied by the fourth amendment and the right to marriage implied by the fourteenth amendment and SCOTUS precedent.
Well, remember…For many years during the early to mid 1800s, Italians were considered “colored”, and in fact faced Jim Crow in the South, IIRC!
I’d love to send this bloated bigot back to the era when there were signs in most of the store sings: “Italians need not apply”, and have his kids harassed in schools for being Catholic…
Ask and ye shall receive!Right after the new House members are sworn in, the entire GOP cabal will be reading the entire Constitution. I dunno if they’ll skip over those places where they disagree… like Scalia’s spew about the 14th.
Going by the text, sureBut Scalia believes you have to try to understand what the authors of that amendment meant at the time. And he believes that at the time the fourteenth was written and ratified they certainly did not mean “persons” to include all genders.
If you wanted to extend rights to women, that would require another amendment later (the nineteenth, for instance) not mere reinterpretation of the fourteenth under new social norms.
That just reinforces my pointThe fourteenth amendment was meant to extend rights to people (read: men) of all races. Including “colored” people. It was specifically not meant–according to Scalia–to extend rights to women.
Of course…because what it says is not what it means.
That notion is completely ridiculous. Sometimes you have to just accept that words really do mean what they say. How anyone can interpret “All persons” to mean anything less than what it says is beyond me. If the writers of the 14th amendment wanted to say “all men” that’s what they would have said. Remember, the 14th Amendment was a necessary response to state laws in the South which denied protection to black people…all black people, including women and children. Any reading of the history of the Abolition Movement in America will show a deep concern for women and children, as well as the men. Scalia knows this and is spouting this nonsense as justification for his own bigotry and intolerance.
Interesting pointIt makes little sense to me, but that’s likely the distinction he’s making.
Looking the subjects up again, it seems that the distinction that I’d learned in college between Originalist and Textualist is not in common usage.
I withdraw my original point, as it’s using non-standard language.
Point withdrawnSee the other thread for why. My apologies.
Then it should have said“all cisgendered heterosexual men born or naturalized in the United States” instead of “all persons born or naturalized in the United States”.