Balkinization: Quote of the Day

Comments:

Just curious, but when WAS the first ban of same-sex marriage?

# posted by

Matt : 1:40 PM

You have omitted Justice Scalia's answer to Olsen (and without ellipses at that). Justice Scalia said that the prohibition of interracial marriage became unconstitutional as of the passage of the Equal Protection Clause.

# posted by

Marc DeGirolami : 1:47 PM

I haven't got to that point yet, but so far the best line is Justice Scalia, in reference to a question about whether people over 55 are generally infertile, "Strom Thurmond wasn't the chairman of the Judiciary Committee when Justice Kagan was confirmed."

# posted by

mls : 1:48 PM

Of course, King Antonin failed to admit that it only took the court 100 years to realize that the 14th amendment prohibited the banning of interracial marriage.

Being King, however, he's entitled to omit whatever he wants. That's why we elected him.

# posted by

cruxdaemon : 1:50 PM

Yes, the transcript is now out and the account is (not surprisingly) more complete than what the live blog described.

# posted by

Gerard N. Magliocca : 1:57 PM

Page 38

http://www.politico.com/story/2013/03/supreme-court-gay-marriage-oral-arguments-transcript-audio-prop-8-hollingsworth-v-perry-89321.html

# posted by

Mariner : 2:21 PM

The Strom quip didn't go over that well. Anyway, Olson is correct. The question is phony really since that is not how things were done. In Brown, e.g., we didn't learn the exact time (9AM on Tuesday?) segregation of schools became unconstitutional. These these develop over time.

# posted by

Joe : 2:32 PM

Just listened through that part of the argument -- it got a little heated.

Scalia just seems to be trying to make the point, albeit in byzantine fashion, that judges shouldn't interpret the Constitution to expand its import beyond its original meaning. The relevance of his line of questioning only really makes sense if we accept that as his premise.

That said, I think Olson was taken aback not just because Scalia's interpretive method has never really been the consistent practice of the Court (particularly in the realm of substantive due process and equal protection), but also because Scalia himself doesn't really faithfully follow it.

And, as a philosophical aside, the notion that the Constitution "meant something" at a "certain point" is bizarre, if not entirely jejune. It's like saying, "the word 'marriage,' by definition, refers to a relationship between man and woman, therefore Proposition 8 is constitutional."

# posted by

Matt : 2:47 PM

Justice Scalia:

Flag burning was not ruled unconstitutional by the Court until more than 200 years after the ratification of the Constitution/First Amendment. Does this render that ruling suspect under your bizarre line of questioning today?

# posted by

Chris W. Martinez : 3:05 PM

*Laws against* flag burning...

# posted by

Chris W. Martinez : 3:41 PM

FYI, Elizabeth Wydra has a post digging into this exchange over at Constitutional Accountability Center's "Text and History" blog...

It's Not A Mystery When Laws Prohibiting Same-Sex Marriage 'Became Unconstitutional'

# posted by

Emily at CAC : 5:03 PM

"No originalist--not even Justice Scalia--believes that the plain words of the Constitution apply only in the ways the framers expected"

In software engineering, when someone uses a software tool you wrote, to build something you never imagined, that's a good thing. It shows your tool had high generality.

And yes, your tool also had to accomplish whatever goal you originally designed it for. But if it does that and then also does other things, things you never thought of, that, as the expression goes, is a huge win.

# posted by

jpk : 5:24 PM

"In software engineering, when someone uses a software tool you wrote, to build something you never imagined, that's a good thing."

You mean that, if you never imagined somebody could sneak a faked virus profile into your anti-viral software, and make it delete the OS, that's a good thing to do? Nah, even programers recognize there are novel good applications of tools, and novel bad applications of tools.

# posted by

Brett : 7:41 PM

Brett's comment doesn't really say anything. Each side thinks certain novel applications are wrong, some are right. But, if he supports jpk's point, that might be progress.

# posted by

Joe : 11:38 AM

Emily at CAC said: FYI, Elizabeth Wydra has a post digging into this exchange over at Constitutional Accountability Center's "Text and History" blog... It's Not A Mystery When Laws Prohibiting Same-Sex Marriage 'Became Unconstitutional:'

"The simple answer to Justice Scalia is that laws banning same-sex couples from marrying were unconstitutional the moment when the American people, in 1868, wrote the guarantee of equality for all persons into the Constitution."

I believe that this was the answer Scalia was fishing for so he could slap it down. Olsen knew this and sidestepped.

Equal protection means that the law treats similarly situated people the same, not that all persons are interchangeable ciphers treated the same under the law.

Showing that heterosexual and homosexual unions are similarly situated is the heavy lift SSM proponents avoid whenever possible.

# posted by

Bart DePalma : 10:50 AM

Showing that heterosexual and homosexual unions are similarly situated is the heavy lift SSM proponents avoid whenever possible.
# posted by Bart DePalma : 10:50 AM

Ironically, homosexual unions are similarly situated to Blankshot Bart's heterosexual union in the category of children produced.

# posted by

Anonymous : 3:02 PM

Matt: "Scalia just seems to be trying to make the point, albeit in byzantine fashion, that judges shouldn't interpret the Constitution to expand its import beyond its original meaning. The relevance of his line of questioning only really makes sense if we accept that as his premise."

This is simply not true. I can name two things off the top of my non-lawyer, non-SCOTUS-obsessed head:

1) Corporate personhood. There is no legal or constitutional basis for this; a bunch of well-bribed railroad-laywer SCOTUS justices not only just made it up, but made it up by stating that they simply would not question this. Talk about legal courage!

2) Scalia's newly-found principle expressed against the VRA, that laws passed by an overwhelming majority in Congress are somehow constitutionally suspect (note: only applicable to laws Scalia opposes).

At this point Scalia isn't even bothering to make his bullsh*t plausible.

# posted by

Barry DeCicco : 9:09 AM

Brett: "You mean that, if you never imagined somebody could sneak a faked virus profile into your anti-viral software, and make it delete the OS, that's a good thing to do? Nah, even programers recognize there are novel good applications of tools, and novel bad applications of tools."

Hey, it's good enough for at least one major anti-virus software firm :)

# posted by

Barry DeCicco : 9:10 AM

Corporations were treated as legal persons in certain ways back in the days of John Marshall.

# posted by

Joe : 10:41 PM

Know of many newspapers which aren't corporations? Book publishers? Broadcasters?

I don't think there's any alternative to according corporations civil rights, so long as people are effectively compelled to form corporations when exercising such civil liberties, by the extreme legal peril our legal system would put them in if they didn't. You can't herd people into corporations, give corporations such advantages that non-corporate forms can not compete with them, and then use the corporate form as an excuse to deny civil liberties.

# posted by

Brett : 9:16 AM

" by the extreme legal peril our legal system would put them in if they didn't"

One might call that 'responsibility.'

"give corporations such advantages that non-corporate forms can not compete with them"

I guess you admit corporations have considerable state granted advantages. Its these that many argue justifies treating them differently than real persons.

"Showing that heterosexual and homosexual unions are similarly situated is the heavy lift SSM proponents avoid whenever possible."

I actually thought that was the entire issue, whether but for the gender (or orientations) of those involved same sex unions are similarly situated. The issue then is whether gender or orientation justifies finding them not so situated.

# posted by

Mr. Whiskas : 11:55 AM

You mean that, if you never imagined somebody could sneak a faked virus profile into your anti-viral software, and make it delete the OS, that's a good thing to do?

Nope, not what I mean.

Perhaps I can help you: is hitting someone on the head with a lever an example of the high generality of the tool? Would anyone call that a 'novel bad application' of it? Yeah, I thought not.

# posted by

jpk : 12:45 PM

jpk's response to Brett:

"Perhaps I can help you: is hitting someone on the head with a lever an example of the high generality of the tool? Would anyone call that a 'novel bad application' of it?"

might suggest a "novel good application" if applied to a certain obdurate bald head that even Archimedes might have approved of..

# posted by

Shag from Brookline : 7:31 AM

This comment has been removed by the author.

# posted by

Cristiero Rola : 1:43 AM

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# posted by

Cristiero Rola : 1:44 AM

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# posted by

Cristiero Rola : 1:44 AM

"Equal protection means that the law treats similarly situated people the same, not that all persons are interchangeable ciphers treated the same under the law."

How is anybody supposed to read this? If the person writing this were my lawyer, I'd fire him/her on the spot. I would not want to retain a lazy lawyer.

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# posted by

AMY : 2:08 AM

Corporate personhood. There is no legal or constitutional basis for this; a bunch of well-bribed railroad-laywer SCOTUS justices not only just made it up, but made it up by stating that they simply would not question this. Talk about legal courage!
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