Queerty is better as a member
…because Marbury v. Madison in the early 1800′s totally didn’t define SCOTUS’s role as interpreters of the Constitution…
Ack. Choke on a spicy meatball already.
Intellectually dishonest. The posterboy of reckless bullshit.
The Constitution is meant to be interpreted with the current time frame and social evolution in mind. Its drafters couldn’t foresee how society would look in 200 years, and purposefully put a lot of things into rather general and wide ranging terms.
“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”
– Thomas Jefferson
This vile, bigoted, racist piece of shit’s biggest regret is that he was born a few decades too late to wear the uniform he really wishes he could don…………..
I’m with Scalia on this one. While the Farmers could not foresee how a society would like like in 200 years, Steve, the method by which they came up with for the constitution to change is via the amendment process, and not from the judicial branch.
It’s that very same reason why abolitionists pursued the must more difficult route of passing the Reconstruction amendments (14th through 16th), which contains the must famed equal protection clause, rather than pursue a slew of court cases. It is also why the Suffrage movement went about trying to pass the 19th amendment and not filing a brief challenging the interpretation of the word “men” in the constitution. Everyone knew that it referred only to the male sex, but the successful amended it to include women as well.
It is only fairly recently, since the Warren court, that we as a society has largely embraced the notion that we should go to judges to solve social ills rather than do what the farmers designed the country to do, which is to amend the constitution.
If the constitution is designed to change–which it is–it must have a solid base to change from. It can’t mean this today and something else tomorrow (social evolution is not always linear or progressive). In our history we have added amendments and repealed them (prohibition), strike out text from the original Constitution (in regards to slavery), and expand equal rights to all citizens. So the amendment process is robust, it is not to say that it is outdated and archaic and requires judges to step in and fill the gap.
We live in a democracy, and as such we presumingly signed up for a democratic principles and not oligarchical rule.
And in regards to the school case, Scalia makes a great point, a great example being whether not a public high school GSA must allow anti-gay bullies to not only be a part of the club but also run for the club president. Scalia made a great point that the flip side of freedom to associate must also being the freedom to not-associate as well.
The Supreme Court itself disagrees with that. And has so for a long time. Since 1803 in Marbury v. Madison, which spelled out and formalized the concept of judicial review.
“It is emphatically the province and duty of the judicial department to say what the law is.”
It’s written gold on marble on the SC walls:
Oh just die already you fat sack of shit. And please try to kick the bucket in a timely manner…Like before Perry v. Schwarzenegger makes it that far up the ladder…
The constitution says nothing about protecting fat old aging bald italian americans either. They are so high maintenance.
@Steve: Scalia isn’t arguing against judicial review or saying interpretation isn’t a part of a justice’s job. What he is saying is that it should not be the responsibility of judges to read in between the lines of text and extrapolate from them larger (and usually more grander) meanings than what was or might have been originally intended.
Go back to the Suffrage example, as that to most obvious example of this, the Constitution mentioned and referred only to men, and used the term “men”. Everyone understood that it referred to the male sex. At the turn of the 20th century the Supreme Court did not, nor did equal rights activists for women ask the Supreme Court, to wrestle with whether or not in their time (1900-1920s) the references to “men” should now be expanded to include women and be more broadly defined as men as in “human beings”, because equal rights as they saw it (i.e. interpretation) were the principles hidden between the lines of the Constitution and the Declaration of Independence.
Instead the suffrage movement mobilized to physically write into the Constitution that equal voting rights must be extended to women. So it did not matter what the farmers might have intended or implied, or what Supreme Court justices thought they intended or implied, because they (feminists and their allies) were the ones writing it themselves.
And repeating this process is all that Scalia believes should be done.
At the end of the day ask yourself, why in a democracy should it be more appropriate for unelected judges to decide what rights are? And before you say because it protects the minorities remember that with the exception of abortion rights,somehow advocates were able to convince American majorities to somehow expand equal rights (and continues to) to minority Americans who were in far greater oppression that we gays and lesbians are today.
No matter how you want to spin it, it is the job of the judiciary to decide what rights to extrapolate from the Constitution (which is deliberately rather vague and broad when it comes to civil rights). That doesn’t mean that the legislature can’t do it as well. But if they fail, they courts don’t just have the ability to step in. It’s their duty.
That’s especially so in the case of minority rights. Democracy doesn’t mean a free-for-all mob rule. That’s exactly what your vaunted framers didn’t want. They wanted a republic. Even in a representative democracy, a parliament just can’t decide whatever they want. They can’t take away the rights of a minority by amending the Constitution whichever way they want and they can’t deny its rights either by doing nothing. When they do either, the minority can go to court which then defends those rights.
The Suffrage movement was just lucky that they had popular and legislative support. It may not have turned out that way. By your interpretation, in that case they should have waited until a majority somehow formed and gave them their rights. Even if it would take a few decades. That’s just not how free societies are supposed to work.
And gay rights, just as voting rights for women or civil rights for African Americans is a matter of equal protection. It all comes down the 14th Amendment.
Even if it says elsewhere that only men can vote, equal protection would trump that too. Going by “originalism”, only white men would have all the rights. Everyone else is inferior. At least until a legislative body gets off its ass and does something. That violates just about every principle of a free and civilized country.
American courts have long gone the route of widening the then-current interpretation of the Constitution to include new groups in certain blanket protections. They haven’t always done so when the cases was first presented to them, but eventually they came around.
It’s one reason why there are so few changes in the Constitution overall, when compared to certain other countries which are more specific exactly which rights they grant to whom.
@Steve: No, Steve, they aren’t deliberately vague. They typically become vague when people try to extrapolate from them things they want or believe the amendment embodies rather than what is actually there: take Roe v. Wade, the impact was important and critical, and the justices were clearly well intentioned, but the opinion is really botched and even Justice Ginsberg has reservation about the route the justices took to create a right to something out of thin air.
That’s part of the problem. The Supreme Court’s job isn’t to determine what rights are in the constitution, but rather to enforce what is already there and strike down laws that contradict what is already in the constitution.
The legislature and court do not have the same job, that would go against the notion of checks and balances: we assign roles to the different branches, they don’t cover each other’s shortcoming when one falls all ball. Thinking otherwise is part of the problem.
I don’t praise the farmers. They were largely a bunch of slaver owners in drag. That being said they came up with an ingenious way for society to change it’s fundamental laws to reflect its ever changing values without doing what you suggest, which would be bad.
And of course you can take away rights. There is nothing constitutionally stopping Americans from repealing the 14th amendment, it has just become such a part of our society that it seems like a natural right that has always been there. You wouldn’t file a court case, you would just lunch a campaign to bring back slavery and if you were successful there is nothing the four liberal justices of the Supreme Court could do. So while we have protections for the minority at the end of the day it will always be the majority that determines what those rights and protections are.
The suffrage movement was lucky, they used the war to their benefit. The amendment as you must know failed initially and only barely passed. But had it not happened that way they would have had to wait, and that might not seem fair or moral, but that is how a democracy is supposed to work. A free democracy does not a mean a nice or moral democracy, but rather one that allows citizens to be part of the decision making process.
And that’s not bad or wrong, because that is what you do in a democracy. I suppose to expedite the process of equal rights we could just surrender all of our rights to benevolent monarchy and hope for the best.
“During the trial Scalia wondered aloud”
Really? What was Scalia doing at a trial?
@Steve: Steve, your argument about the equal protection clause trumping everything is clearly not the case, the equal protection clause was the law of the land and women still did not have the right to vote until the suffrage movement passed the 19th amendment, despite the fact as you say the equal protection clause trumping everything.
Going based on the original text, yes, only white men (who owned land) would be able to vote. However, we have amended the text. Originalism does not suggest that the only amendments that matter are the ones a bunch dead drag queen wrote in between of having sex with their slaves. Far from it. Originalism isn’t even inherently conservative. All it says is that the all of the amendments of the constitution should be applied as they were intended and no rights should be extrapolated for a supposed greater purpose, instead those causes should go about amending the constitution, and not try to essentially piggy back off other other amendments.
I see nothing wrong with amending the Consititution, after all that is what it was designed to do. The Farmers went to great lengths to lay out a federal structure to do just that. I have no idea why today we consider amending the Constitution, and treating it like an actual living document that grows (physically and metaphorically) sacrilegious. What I find frightening is the tendency for us to embrace the idea that in a democracy we should hand over our right to debate and decide our laws and rights to unelected appointed judges.
I watched the New York senate debate their marriage amendment and I found elected representatives standing up and risking their political career voting for something they believe in far more courageous and inspiring than reading Supreme Court amendment. Don’t you?
I see nothing wrong with amending the Constitution, after all that is what it was designed to do. The Farmers went to great lengths to lay out a federal structure to do just that. I have no idea why today we consider amending the Constitution, and treating it like an actual living document that grows (physically and metaphorically) sacrilegious. What I find frightening is the tendency for us to embrace the idea that in a democracy we should hand over our right to debate and decide our laws and rights to unelected appointed judges.
Can we have this Italian Catholic judicial dork impeached? The man is a total tool.
The Constitution also doesn’t say anything about not discriminating against Italians or Catholics.
@J. Clarence. :You used the word “FARMERS” at least 4 times in your post. Why?
Otherwise your spelling is fine.
By any chance did you mean FRAMERS?
Those are two different things BTW.
@Jeffree: I came across other errors after I posted. I’m basically writing in a rush so occasionally I’m just typing faster than my eyes can process, and I have horrible habit of not proof reading. Also I think I’m partially dyslexic.
There has been enough obfuscation in many disciplines, including and especially in the law professions by the right wing for two generations now. Legal standards have come to mean whatever you can get away with in your personal elite-powered bubble of misinformation and double think. Scalia is a human backlash to the civil rights era and women’s suffrage, and there is no way to prove to him that he is short sighted and basically a ideological hustler at this point. Free inquiry and human liberty means nothing in terms of determining any kind of future to these people, since they were raised to believe in an eternal status quo, just like every proto fascist who has ever lived. Should he choke on one of his wifes wonderful meatballs and die? Sure.
It’s hollow hateful freedom of speech on the part of a supreme court justice. Disgraceful. He is so obviously incapable of impartiality and objectivity. He perfectly timed his roman catholic dribbling nonsense as the pope created a British Terror ruse to avoid accountability for his own scandalous assault on thousands of children all over the planet. Fuck off Scalia. Shove your pathetic ugly hearted phoney god fantasy concepts up your dark and dirty hole.
We now have more recorded evidence that Scalia should recuse himself of hearing any case regarding sexual orientation. He continues to exhibit a personal prejudice.
I think Scalia is just about 2 cheeseburgers and a large order of fries short of making the court balanced again:)
@ewe: What are you talking about? All he has ever said is consistent with his originalist views. He has never said “I hate the homogays, I hope they burn in hell”, though I wouldn’t be surprised if he might whole a sliver of notion personally.
If we passed a constitutional amendment expanding marriage-equality, I can guarantee you he wouldn’t say later that it is unconstitutional because, “I hate the homogays.”
In the Lawrence v. Texas case, which he dissented in, in his dissent he never said that anti-sodomy laws were a good thing, in fact he mentioned and credited gay advocates for the state level campaigns to repeal anti-sodomy laws, reducing the number at the time of the case to just about 13 states. All he said was there was no place in the constitution that said there was a right to intimate privacy.
I don’t understand why we in the gay community have to have this outrageous notion that because of the judicial philosophy that this man has always had and because he says that the constitution unequivocally, i.e. without the need for interpretation, does not say that anti-gay discrimination is unconstitutional (which the court has never said it doesn’t) he is labeled a in such a light. Especially when our best argument is that a clause in an amendment written a hundred years ago specifically about slaves and race relations should be extrapolated to mean something different because of its greater good.
I had the pleasure or non-pleasure of sitting through a forum with Scalia (I experienced both sensations at the same time) and he is an originalist and laid out his view point in an articulate manner. He doesn’t believe that the constitution is a living document, and that the framers explicitly left out many of these social issues because they had no idea of how society would change. For example slavery was left out because all though it was prevalent in the days it was not beyond comprehension that it was an abhorrent act that would not stand the muster of time, and the framers were in a sense attempting to protect us from ourselves. For example a judge ruling in the 1930 would have easily ruled that gay people were sub-human and undeserving of rights as an individual but to actually get that sort of discrimination into the constitution would be much more difficult. A legislative body could rule on the mater but it could be easily overturned as society changed providing key checks and balances. Scalia sees all things that way, that the court was never granted the power to decide social issues that are liable to change as society does. He feels that as society changes the representatives of the people, Congress, will reflect those changes with legislation. He believes it is not the courts job or within its power to adjudicate morality, which in truth could be a good or very bad thing depending. His argument does hold some merit and even our current president feels that it would have been better if certain civil rights, impacting African Americans, were not handed down by a court decision but carried out through legislation. Granting the court powers which are not bestowed by the constitution is a grave rebuke to our U.S. style of democracy. One day it maybe possible to amend the constitution to truly grant equality but their is a high bar to do that and until then the legislator is the only legal route to effect such change. Where the problems lie is Scalia seems to exercise these beliefs in a convenient situationally based manner. Other justices don’t buy into the way that originalist view and interpret the constitution. Scalia made a cogent argument but I have not been as fortunate to hear first hand accounts from other Supreme Court Justices.
This pig-faced fucker never met an anti-gay law (or apparently a meatloaf) that he didn’t just love.
@J. Clarence: What am i talking about? You don’t know why? I do. He is a staunch roman catholic. I do not need to dress that up or mince words. Fine. Believe all you want he is not stuck in philosophy. He is trapped by dogma and i am not going to willingly be the fucking dog.
@ewe: I get that Scalia is sometimes more catholic than the Pope, and he makes his conservatives views known quite well (he attends Latin mass every Sunday, traveling a great distance as just one example). However, I have never heard anyone say that this guy’s claim to fame is his religious beliefs. There are even instances where the Vatican has publicly favored one direction with the court, in particular in regards to death penalty cases, where Scalia openly disagreed.
So while there is no mistake about his personal religious beliefs, and there’s nothing wrong with having one, I don’t think anyone observer of the court or someone familiar with Scalia’s judicial history would suggest that the driving force behind his decisions are Catholicism, but rather his genuine judicial philosophy. Now you may not like that, because it doesn’t fit the narrative you have sit for him, but that’s just the way it is. Now had you said this about Justice Thomas, I would be inclined to agree with you. That guy is a religious nut.
@Reason, Justice Breyer makes a convincing case for the “living constitution” model, there is even a really nice debate between Scalia and Breyer that’s “fun” to watch. However, ultimately I think Scalia’s originalism offers the best foundation to go by. And while a national marriage-equality amendment seems far-fetched, a state-by-state based model is wholly appropriate and a good way to expand the base of support, or even state court decision where their equal protection laws are more broadly defined.
@J. Clarence: It’s nice to see an intelligent, rational person on Queerty for once.
there’s just one, very important thing, that you missed J. Clarence; re: equal application of the laws 14th amendment. Society’s view of women has changed. Giving them the right to vote did NOT make them equal in the eyes of the majority of the public; in many states women still had to have their husband’s permission to get credit cards etc until the 70′s.
The concept of Gay’s marrying is “new” therefore the application of the equality laws is “new” as well.
@J. Clarence: Oh, but Scalia’s religious background IS indeed part of his claim to fame.
He and, if I’m not mistaken, Clarence Thomas, are members of the Opus Dei– the most conservative, most backward and MOST DANGEROUS cult within the Catholic Church.
Religious extremism has no place in a civilized society, and certainly not in a representational democratic republic like the United States is supposed to be. And definitely not on the Supreme Court.
See comment #4 for the ACTUAL truth on what the Framers really envisioned vis-à-vis the Constitution as a living document, to be interpreted according to the PRESENT, not the PAST.
@Jaroslaw: Jaroslaw, isn’t your very example of women not being able to get credit cards without their husband’s permission until the 1970s a perfect illustration of the fact that the equal protection clause, written late 19th century, is not this all encompassing piece of text?
Women were giving the right to vote, and were therefore equal citizens under the law, and whether or not the majority of the public liked that or that there were other discriminatory laws is another story.
“The concept of Gay’s marrying is ‘new’ therefore the application of the equality laws is “new” as well.” II have no idea what this sentence means.
I don’t disagree with you about there not being a place for religious extremism in secular society, but the Supreme Court is not a representative body–that’s another, albeit minor, reason why we shouldn’t put such power in the hands of so few.
What Steve posted in his comment was a quote by Thomas Jefferson, and as a quote it’s of little practical use in regards to the constitutionality of something. And look I don’t disagree that the Constitution is a living document, the only disagreement we have is how in which the constitution “lives” and changes with time. The way I see it, and the way the Constitution itself defines it, the Constitution “lives” and changes via the amendment process. The way you see it the text of the constitution can mean one thing today and something completely different tomorrow.
Let us pretend for a second that the quote from Jefferson mattered. There is no reason to presume that he did not mean that the way in which the constitution changes along with the hearts and minds of men is via the amendment process. In fact there is every reason to assume that is what he meant. After all Jefferson was around, and was part of the gang, that wrote the damned thing.
@J. Clarence: I don’t get what your agenda is. Scalia is not referring to heterosexuality when he purposely brings up the topic of sexual orientation and the constitution. The Supreme Court has the power of judicial review. Stop pushing him as an impartial scholar. Scalia is a homophobe and he can indeed be viewed as biased.
#32 I don’t know how you miss the parallels when I say Same Sex marriage is new…..
Women did not have the right to vote because they were viewed as accessories and/or property to their husbands, They were NOT viewed as full equal citizens.
Marriage in our society has always been viewed as a rite between man and woman. Now that our truths have changed and at least most of us understand at least in some measure that Gays can love and form relationships etc.(see post #4 above, second paragraph quote from Jefferson) the equal protection clause must now be reinterpreted to include Gays/us.
Clear enough now?
And sorry, I don’t get your first two paragraphs on 32. “whether or not other discriminatory laws existed is irrelevant?” ???
Marriage has not been viewed as between man and woman just in our society, but for 10s of thousands of years. Why should the traditions of the ancients and beliefs of millions be changed to accommodate the few? I do not have a problem with gays loving each other and having unions. I do have a problem with changing solid traditions and beliefs of many for a select few. Have your unions that are like marriage and call it something else.
Tyrannus – do some reading. In our country, yes the USA, less than 100 years ago a Berdache visited the White House – a MALE Indian married to another MALE, Teddy Roosevelt’s administration.
Marriage has NOT always meant just a man and woman; or if it did, it is almost meaningless. Greek men trained young males in the ways of male/male sex, marriage was pretty much for inheritance only. Male/male prostitution was legal and taxed under Constantine, a Christian emperor!
As to “what has always been for thousands of years” – there have been many hundreds of hideously barbaric practices that we no longer do. The concept of same sex acts was known, but not same sex love and commitment. You say you have no problem with it – then you should know separate is never equal. That is why it is separate – by definition something that is not the same is different! Sorry to beat a dead horse, but I want to make sure I’m clear.
Finally, we live in the USA, supposedly a bastion of Freedom. I fail to see how, outside religious norms; why my male/male marriage is infringting on your life in any way. (Please let me know if it does) For the record, the sky has not fallen in Vermont, Massachussetts or Europe – they have had same sex marriages/unions for a long time now.
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