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Tuesday, March 26, 2013

Quote of the Day

Gerard N. Magliocca

Courtesy of a live blog from the WSJ:

JUSTICE SCALIA:  When did it become unconstitutional to ban same-sex marriage?  Was it 1791?  1868?

TED OLSON:  When did it become unconstitutional to ban interracial marriage?

JUSTICE SCALIA:  Don't try to answer my question with your own question.

Comments:

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

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.
 

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."
 

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.
 

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

Page 38

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

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.
 

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."
 

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?
 

*Laws against* flag burning...
 

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'
 

"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.
 

"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.
 

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.
 

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.
 

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.
 

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.
 

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 :)
 

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

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.
 

" 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.




 

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.
 

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..
 

This comment has been removed by the author.
 

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.http://www.joyrs.com windows 7 ultimate activation key http://www.rs2fun.com
 

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.www.joyrs.com windows 7 professional product key www.rs2fun.com

 

"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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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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