All philosophies are based on certain axioms. The test is whether 1) those axioms have some basis in reality and 2) the logical conclusions of those axioms are not contradicted by reality.
I don’t think anyone has claimed that any type of constitutional analysis is not difficult. But the truth is that the constitution is a living document, in that it has a clearly defined method for amending it. That process invlolves action by the people and their elected officials, not action by judges. Judges are not there to devine some disembodied, universal truth, but to interpret the will of the people, as expressed explicitly in the statutes and constitution of this country.
You keep insisting that because the tool that Scalia uses to advance his scummy ideas of how we should live is well-designed, he can’t be evil. Riiiiiight.
You’re running out of sound arguments fast. Here we have a false dilemma AND an argumentum ad hominen – "It’s do things my way or your way, the way of the mob. How about this: maybe people who don’t want to do things your way have their own ideas how things should be done? Just because people don’t want to let you frame the argument, it doesn’t mean they’re a mob.
No, but I have a mind, one that is capable of making inferences about people’s minds based on their words and actions. Just because you don’t understand something, it doesn’t mean it’s the product of “magical” powers like mind-reading.
I’ve already said I think Scalia is a lot worse than any of the others. Even Rhenquist, who’s also evil, is evil in a different and lesser way than Scalia.
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I look forward to your critique of the arguments Scalia put forth in his concurring opinion in Bush v. Gore. Or will you just hand-wave them away? Nevermind that he is foursquare within the rules established by the court. Nevermind that he has recused himself in other cases, e.g., the Pledge case. [Dr. Evil] Riiiiiiiiiight. [/Dr. Evil]
Why should I critique it when so many more qualified than me have called the decision unmitigated trash? To wit:
So what, exactly, is your position on the application of the Equal Protection clause, Evil Captor? Was it misapplied in Bush v Gore?
From reading your posts, it seems to me you’re uncomfortable with supporting a particular analysis. It seems to me that you’d much rather figure out what the “right” result should be in a particular case, and then figure out what methods of analysis we might apply to reach that result. Is that an unfair characterization?
No, I’m saying that you can’t say whether someone is evil or not based on their adherence to a particular set of judicial principles. That is, Scalia might be evil, but the evidence you have advanced does not support that conclusion. Given that you are the party advancing a claim (“Scalia is evil”), the burden of proof rests on your shoulders. You have not met that burden.
My point is neither a false dilemma nor an ad homimen. That is, it neither presents a false binary choice nor does it attack you personally.
What is does do is accurately describe your position. You dislike Scalia’s jurisprudence, so much so that you think the man evil. You aren’t willing to consider whether his positions might have merit (even as you continue to disagree). You aren’t willing to look clinically at the substance of Scalia’s position. You are content to label the man evil simply because you violently disagree, regardless of whatever intellectual merit his philosophy might have.
That is the way of the mob: you ignore reason in favor of passion. The description is apt.
But in essence it is. You are inferring evil motives almost exclusively from Scalia’s judicial positions, positions which are largely derived from a well-known, coherent philosophy of constituitional interpretation. You claim that Scalia adheres to this philosophy not because he geuninely believes in the underpinnings of strict constructionism, but rather because he’s a horrible ogre of a person looking for whatever cover he can find to spread evil throughout the world.
And you base that assertion on…what, exactly? What possible basis could you have for stating such a thing? Certainly Scalia has always defended his philosophy on the noblest of grounds. But you discount this as mere cover, a ruse to cover his real motivations. How again do you get at those motivations?
You remind me of conspiracy theorists who claim that absence of evidence is just proof of how meticulous the conspirators were in covering their tracks. Your position, like theirs, is absurd.
But again, you’re willing to call someone evil based on nothing more than their judicial philosophy. OK, so you’ve got a sliding scale of evil. That doesn’t change the absurdity of your position.
It’s so cute that you cite to a Commondreams article instead of providing your own analysis. Tell me, if I go find a National Review article in response, will that make things a wash?
Whether or not his positions have “intellectual merit” has little bearing on whether or not he is evil. Intelligence and wisdom can be bent to the purpose of evil just as easily as they can to the purpose of good. It matters not how competently argued a thesis is, if its application works evil. And I (and many others) contend that Scalia’s application of his theory of jurisprudence (whatever it might be) works evil. You, obviously, disagree.
Scalia (as mediumed through jshore): “Equal protection”, what’s that? Oh, you mean that idea we applied in that case which should not serve as a precedent for any other case?
Seriously, does anyone who defends Scalia want to explain to us how “equal protection” applies in Bush v. Gore but somehow doesn’t apply in death penalty cases (where the statistics clearly show there is nothing approaching equal application of the death penalty in regards to issues like race of the victim and race of the perpetrator)?
I think Elysian’s quote from Scalia really casts into the light what I find so abhorrent about a strict constructionist philosophy: By being able to find so few rights for people in the Constitution, it allows for tyranny of the majority…i.e., it allows the governments to make laws that I believe infringe on protected rights and often with no compelling government interest. (Interesting question: What does Scalia’s strict constructionist philosophy bring him to find on issues of economic / private property rights? My guess is that there, he conveniently finds stronger rights in the Constitution although I admit that I haven’t followed his juriprudence closely enough to know for sure.)
The more I think about this, the more I feel that it is an important test. For example, has Scalia generally ruled in favor of the government’s right to regulate (e.g., in environmental matters) or has he argued that the laws should be struck down for violating some right? I.e., is there really strong evidence that there are lots of rights that he doesn’t find in the Constitution…even many that conservatives find there…Or is it just restricted primarily to rights that liberals find in the Constitution? [I haven’t read Locher in detail…But I wouldn’t really count a case from way-back-when as showing that Scalia will disagree with conservatives. I.e., I want evidence that he disagrees with conservatives today on issues that matter to them, not conservatives of 50 to 100 years ago.]
Doesn’t bringing “good” or “evil” in sort of confuse the issue? First of all, I’m not sure his application actually does work evil, but even if it does, he’s a Justice, not a clergyman. It’s not his job to “do good”. It’s his job to rule on the law, as he understands it to be.
you’ll have to demonstrate that the laws which are used to apply the death penalty are biased in some way before equal protection becomes an issue.
if, at judicial discretion, the punishment is meted out disparately, that is a wholly separate issue from whether or not the death penalty itself violates the equal protection clause, and an issue with an entirely different solution than eliminating the death penalty as unconstitutional.
Well, there is this pesky thing called the takings clause of the fifth amendment…
While Scalia disfavors the wholesale judicial creation of rights, he also favors vigorous enforcement of rights that actually exist in the constitutional text. This trancends ordinary political divides. Consider his opinion in Kyllo v. US: Scalia, writing for a 5-member majority that included Souter, Thomas, Ginsburg, and Breyer, held that the government had violated the fourth amendment’s search and seizure clause when it aimed a thermal imaging device at a suspect’s house in order to determine if the suspect was growing marijuana inside.
That’s hardly a result that traditional law and order conservatives would applaud as a matter of policy, but it is consistent with Scalia’s stated judicial philosophy.
Conservatives today still dislike minimum wage and maximum hour laws of the type struck down in the Lochner era (for the soundest of economic reasons, I might add). Doubtless many the less principled among them would leap at the chance to re-insert a “right to contract” into the constitution via judicial fiat. I understand your desire to arbitrarily exclude those things that inconveniently run counter to your thesis, but I hardly think it appropriate for you to do so.
I am absolutely opposed to the death penalty – but I don’t believe that there is a colorable Equal protection argument to be made against it.
This is, perhaps, why there is a disconnect in this discussion. I am perfectly able to understand the distinction – even though opposed to the death penalty, I recognize that those who favor it have legitimate reasons to do so.
KellyM’s method of analysis would apparently have me reason that since the death penalty is evil, those who support it are evil. She would also, I believe, have me applaud a court finding that the death penalty violated equal protection guarantees. This I would not do - it would be reaching the right result by the wrong path, and would open us up to more egregious abuses of judicial authority down the road. You may cheer if the Supreme Court finds, grounded in Due Process, a fundamental right to sodomy, yet you jeer when the same Court finds that ballot counting in Florida flawed. You cannot pick and choose.
Yet that’s consistently what I read. People WANT to pick and choose; as long as the Court is serving up results they wish for, they are happy - no matter the method. People don’t seem to focus on the process - merely the result. But the process is more important than the result, because the process guides future results; a single case is not as important as the progeny it may spawn.
Well, I am not arguing that the death penalty has to be ruled completely unconstitutional but I do think it is clear as day from the statistics that it has been applied in a way that violates equal protection and something has to be done about that. Scalia disagreed when this came before the court.
And, why do you claim I have to demonstrate the laws themselves are biased? I think the clear meaning of “equal protection” is that the laws must be applied in an equal manner in how they are carried out. It is not “equal protection” under the law if the laws are applied in an unequal manner.
I am close to being in the opposite camp. I.e., I am against the death penalty not because I necessarily think it to be immoral in principle…I don’t think it is necessarily so…but because we have clearly been unable to carry it out in a fair and impartial way in practice. By “fair and impartial”, I mean both that the error rate (executing the innocent) be zero or damn close to it and that it be applied impartially, which would mean at a minimum that it is applied in a manner that is not biased by race of victim or perpetrator.
Okay, let me phrase this a little differently…Scalia gets points for coming up on the “liberal” side of issues that are still on the forefront of case law today. He does not earn points in my book by saying he’d be on the liberal side of an issue that is already basically settled. So, I give him points for Kyllo but not for Locher (unless you can show me that there is really a prayer that the conservatives could get such a ruling today) or Brown v. Board of Education.
As the old joke goes,: A man comes up to a biali stand and asks how much the bialis are. The baker tells him there a dollar a piece. The man says, ‘That is a rip-off…The guy down the street is selling them for 25 cents a piece.’ “So why don’t you buy from him?” asks the baker. ‘Well, he is out of them.’ replies the man. To which the baker replies: “Well, when I am out of bialis, I sell them for 25 cents a piece too.”
I’m not persuaded that it IS biased by race… I believe it’s biased against the poor, which unfortunately does tend to have a strong correlation to race, especially in urban environments. But that’s true of every single aspect of the justice system, and we can hardly invalidate assault laws, for example, by observing that a disproportionate number of people convicted for violent assaults are of one race.
I agree that the execution of the innocent is a huge problem, but that is not an equal protection argument - if anything, it’s a due process argument.
in order to strike down the death penalty itself based on its unconsitutionality (by the equal protection clause), you must first demonstrate that laws that impose the death penalty do so in an unequal fashion. otherwise, you are policing the executives, not the laws. the actions of the people who apply the laws do not make the laws unconsitutional.
Yet again the decision in Lawrence is mischaracterized. Lawrence found that people had a right to be left alone in their bedrooms, not that sodomy per se was a Constitutional right.
In fact, the Court’s opinion specifically states the question is not whether sodomy itself is protected.
Actually I can. I choose to cheer when the court actually upholds the principles of Liberty (as in Lawrence and * Kyllo*) and hiss when it hinders Justice (as it did in Bush v Gore)
It’s not necessary to argue this as a hypothetical. If you remember, the SCotUS ruled the death penalty unconstitutional in 1972 in Furman v. Georgia on 8th amendment grounds (cruel and unusual punishment), not on an equal protection argument. Of course, the court re-instated the death penalty in 1976.