Section 2 of that amendment says that your construction is wrong. Blacks and Women can be denied the vote by a state (but the state suffers decreased representation in Congress for the denial of suffrage to blacks, no punishment for denial of suffrage to women). If the framers meant what you say they did in section 1, then section 2 directly contradicts it leading to an absurd result. So there is ambiguity and a need to look at original intent to gather the meaning.
Why is it an absurd result?
Why is it absurd if I say in my Constitution:
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All members of the SDMB shall be allowed to post threads.
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Bricker and jtgain may be banned from posting in Great Debates, if so their post counts from other threads shall be deducted from the total post count of Great Debates.
In my first section I explicitly grant posting rights to everyone.
In my second section I explicitly allow that you and Bricker may be denied certain rights with the results spelled out if that happens.
Beyond potentially barring you from GD you have the same rights to post as anyone else under my constitution.
Section two does not undo section one and I see no absurd result. Section two is explicit and stands on its own.
Why would the writers resort to some bizarre code we have to decipher wherein they hide their intent in other sections and not just come right out and say what they meant in the first case? If they meant to restrict rights to only race in the 14th then they could have said so. They were not dumb, they had full command of the language.
But he’s said that he’d most assuredly NOT in favor of flag burning, that he’d support an amendment to outlaw it. As a matter of public policy, he wants flag burning outlawed.
And he had a perfect chance to make it happen. His vote would have changed the Court’s decision.
And he didn’t change his vote.
No, all sections have ot be read together, harmonizing them and giving full effect to each.
What you’re missing is that this was a carefully planned dodge. He needed to throw a bone out there so people like you would have some cover when called to defend him. I know this because I heard he consulted the same people who faked Obama’s birth certificate in order to come up with strategy.
Clearly the powerful flag-manufacturing lobby wanted him to vote that way in order to drum up further business. (You gotta buy em to burn em, right?) Thus allowing Scalia to remain a corporate shill. (Or whore, or whatever the characterization was.)
Or perhaps Scalia wants to make 1st Amendment rights as broad as possible to ensure that he can strike down campaign finance reform and grant corporations free speech rights. That would at least be consistent.
Huh?
Why?
If one section is unclear I can see looking further afield to try to get a sense of it.
But why write one section clearly, when you could easily say something else if you wanted to, and then expect people to look elsewhere for what you meant?
That makes no sense whatsoever.
Section 1 of the 14th is clear and unambiguous.
It is you and jtgain who are running around looking elsewhere to throw up smoke and mirrors and create confusion where there is none.
“My opinion” doesn’t mean “consensus.” Seriously, the worst ever? You know all the justices who sat in, say, 1891? How about the ones who ruled on Dred Scott?
Scalia the worst ever?
Nope.
But then he has the benefit of hindsight and one would hope he’d be a distinct improvement over slave era (near enough) justices.
I suspect if Scalia had lived back then he’d have been right there with them. Times change and so Scalia simply cannot rule that African Americans are unable to claim citizenship.
I think a case could be made, given Scalia’s ruling history, that he would have ruled with the majority in Dred Scott.
I should add that his defenders would say he would rule with the majority in Dred Scott out of a principled position and no animus towards black people.
Probably helps them think that makes it all ok.
So you’re complaining that people aren’t acting like the strawmen you want them to be?
Bricker, you need to decide whether you want to argue with his reasonable critics or his unreasonable ones. Thus far, your arguments seems to be aimed at the unreasonable. You’re never going to get an admission from them, so why bother? By targeting the unreasonable, you’ve erected a straw man that no reasonable critic of Scalia’s will defend.
Here, IMHO, is the truth about Scalia:
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He’s smart. He’s clever. He’s arrogant. He’s a bona fide textualist. He’s a bona fide conservative.
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Scalia’s arrogance is of a particular quality; he, I think, believes he is doing the right thing when he does it, and the right thing means doing his job the way it’s meant to be done, and adhering to his principles. His arrogance also includes a heaping portion of self-love, and I think he glories in his intellectual stature among those whose opinions matter.
How does this work in deciding cases? First of all, as you well know, most appeals to the Court are not accepted, and some of these are later dismissed; of those that are decided, roughly half are by memorandum. Of cases that are decided with written opinions, only 60% also involve a written dissent, and only a fair proportion of either is written by Scalia. In selecting cases, Scalia, like the other justices, prefers cases which will matter – those which turn upon issues he thinks are important, those which will overturn laws or set precedents. In judging cases, and in writing opinions, he is unlikely to jeopardize his self-regard or his reputation by blatantly abandoning any of his principles – ANY of them.
When the law clearly indicates a result that his conservatism abhors, he’ll go with the law, as we see with the flag-burning case. But, as we’ve seen, cases that simple rarely reach the court, and even more rarely result in Scalia writing an opinion (well, “rarely” in a relative sense – in 24 years on the Court, he’s written nearly 500 opinions). It’s the contention of the honest, intelligent, reasonable critic that, when the case and the law give him room to do so, Scalia will render a socially conservative opinion that is superficially consistent with a strict reading of the text, rather than rigorously follow the text (and logic) and render an opinion that is repugnant to his conservatism.
In the case you didn’t adequately reference in your OP, Scalia goes out on a limb, penning what to me (and to many) appears to be an absurd dissent, balking at the notion that “applicable standards” are only applied “if applicable” – arguing that if the authors hadn’t meant to apply the standards to cases where they didn’t apply (WTF?), they’d have says “if applicable” instead. He also argues that IRS guidelines defining “ownership cost” and “operating cost” should not be considered by the court, because they’re not referred to in the text of the law. This is consistent with textualism, though a bit bizarre – surely even textualists must rely on dictionaries and such, and other external sources for the meanings of words? Surely, when interpreting a standard mentioned in the law, the agency that promulgated that standard is a more reliable guide to what the words mean than Merriam-Webster or the American Heritage Usage Board? Scalia also derides some reasoning in the Court’s opinion that deserves it, but I won’t comment on that; for the most part, Kagan’s opinion is a marvel of reason and clarity compared to most legal writing.
What we’re left to ponder, for the purpose of this debate, are two questions: (1) does textualism require Scalia’s findings of law? (2) does his opinion further his conservative agenda? For the first question, I’d argue that it doesn’t; in fact, I’d say that his analysis flies in the face of the common meanings of the words. As an author of company procedures for complying with regulations and standards, I know that when I write “applicable standards,” I intend to apply the standards only to cases to which they apply, and I rely on the promulgating authority’s written guidelines when a word or phrase’s meaning is equivocal. Scalia’s position is a “gotcha!” – a “you didn’t mean what you thought you meant – sucks to be you!” While this position is sometimes necessary in the case of poorly drafted laws, neither this law nor the standards it references justify such a position, much less require it. Nonetheless, I’ll concede that in an 8-1 decision, Scalia’s dissent may – I say MAY – be an honest, if Quixotic, defense against what he regards as the Court’s excessive tolerance of sloppy draughtsmanship.
But let’s look at the second question: is this one of those facile conservative opinions in textualist clothing? What conservative agenda is furthered by this argument? Scalia, despite what some say, has never shown himself to be a pro-business conservative – his “pro-business” opinions are usually rooted in his loathing for what he regards as excessive expansion of individual rights based on, for example, substantive due process. He’s a judicial conservative first, and a social conservative second (a very close second). I’d guess that the power of regulatory agencies, and their ability to “legislate from the executive branch,” as it were, offends him on both fronts, and that this opinion will lend weight to future arguments regarding the degree of latitude and authority that such agencies should wield in interpreting their own regulations. Such a result would be in keeping with everything I know about the man – his intelligence, his wit, his conservatism, his judicial leanings, and his arrogance.
It’s entirely possible, of course, that this decision furthers some other agenda that isn’t clear to me, or none at all. I’m not a lawyer, I’m not as smart or as crafty as Antonin Scalia, and I don’t really know that much about conservative thought; I’m not the one to say with such certainty what the ramifications of this dissent are. But I’m smart enough to know that guys like Scalia don’t go out on a limb without a reason.
See post #60.
Sigh. One of these days I’m going to learn my lesson about arguing with you. I know about the goddam flag burning case Bricker. I brought it up in this thread before you did, as an anomaly that doesn’t erase all the other ridiculous decisions he’s made.
How convenient of you to completely disregard the second half of my post, where I explain why Dear Nino induces so much rage in people. Scalia is very similar to a biblical apologist, where every piece of evidence, no matter what it is, will be viewed in such as way as to bolster his side of the argument. It’s like listening to somebody explain why, in certain circumstances, pi can equal 3. Except it’s not some nut arguing something that doesn’t make any difference, it’s a guy with real power and his delusional ravings become law.
My ire is raised by the unreasonable critics. I think my intention was to highlight the unreasonable nature of their criticism.
If I were faced with posts like yours, I fear I’d be forced to mumble something like, “Yeah, um, ok, whatever,” and ungracefully withdraw from the debate, because while I don’t sign on to what you said across the board, everything you said is eminently defensible.
So my choice is to work hard to try to win a point from you, in an argument that a reader of good faith can easily see could go either way, or easily highlight the absurd arguments that the reader of good faith can (hopefully) easily see as slam-dunks.
I know I am unlikely to convince the actual purveyors. But I imagine there are readers who have uncritically accepted the Scalia narrative and now are saying, “Scalia not only was the deciding vote on the flag burning case but actually wrote the opinin saying it was constitutional? I didn’t know that!”
And those readers might move a little closer to a reasonable view of the man as a result.
double post
Bricker, it Scalia always just uses his originalist/textualist method and goes where it takes him, can you explain how he came up with the 14-day period in * Maryland v. Shatzer*?
Which opinion on flag burning did Scalia write? He concurred on Texas v. Johnson and United States v. Eichman but I thought Brennan wrote those decisions.
As for his concurrence, nobody ever claimed that Scalia was stupid. Sure, he’s a conservative but he’s a very intelligent conservative. The reality is that pretty much everyone finds flag burning offensive. So who benefits when the Revolutionary Communist Youth Brigade burns a flag? The left or the right?
This is a classic example of how you can be right and wrong at the same time. Scalia does indeed “methodically appl[y] his analytical approach to every case” but his analytical approach, textualism, is one which by its very nature places the veneer of impartial analysis over partial decision making. The determination of whether the plain text of a statute, regulation or constitutional provision is plain on its face is one which invites an outcome based result.
Does this mean Scalia is doing anything nefarious? No - all judges at every level bring their own biases and life experiences to every decision they make, and those define how they view something, even something which is claimed to be as pure as textual analysis.
It also doesn’t mean Scalia is sitting down and rubbing his hands together, deciding how he wants the case to come out, then drafting a bogus textualist justification. What it does mean is that he reads the text in a certain manner, and that manner is determined by his view of society and the role of government within it.