Scalia and the (supposedly) unchanging Constitution

Supreme Court Justice Antonin Scalia is probably the nation’s foremost advocate of “originalism,” or “textualism.” As he explained the idea in a speech at Catholic University in 1996, originalism among other things holds that the Constitution is immutable, that it does not change over time.

“What it meant when it was adopted it means today, and its meaning doesn’t change just because we think that meaning is no longer adequate to our times,” Scalia said. “If it’s inadequate, we can amend it.”

In that speech, Scalia contrasted originalism with the idea of the Constitution as a living, breathing document that must be reinterpreted to meet the demands of a changing country. Under that second, intellectually irresponsible approach, Scalia argued, “the Constitution means what it ought to mean. Not what it did mean, but what it ought to mean. And so, all sorts of rights that clearly did not exist at the time of the Constitution (exist) today.”

Advocates of originalism or textualism portray their approach as a more honest, concrete means of interpreting the Constitution. In contrast to their opponents, they are the true keepers of the flame lit by our Founding Fathers. Originalism treats the Constitution as “that anchor, that rock, that unchanging institution that forms the American polity,” says Scalia.

Given that background, it was interesting to hear Scalia say once again the other night that had he been on the Supreme Court in 1954, he would have voted in the majority on Brown v. Board of Education, the classic court decision that abolished the concept of “separate but equal” schools and effectively ended school segregation.

Brown was decided largely on the 14th Amendment, which had been passed in 1868 in the wake of the Civil War. Among other things, that amendment guaranteed all Americans, black and white, equal protection under the law and required states to honor that protection. In the Brown case, the court decided that segregated schools violated the guarantee of equal protection under the law.

But here’s where things get sticky for Scalia and other “originalists.” The very same Congress that passed the 14th amendment by the required two-thirds vote in the House and Senate also passed a law that mandated the segregation of schools in the District of Columbia.

In 1868, in other words, the 14th Amendment very clearly did not ban school segregation. For the next 88 years, it did not ban school segregation. But by 1954, it suddenly did. Scalia, the man who claims that “what it meant when it was adopted it means today,” is somehow cool with that.

Try as Scalia might, there is no way those two positions can be honestly reconciled.

In that 1996 speech, Scalia also derides the notion that “equal protection of the law” could be applied to guarantee an equal right to vote. In a quite extensive discussion, he acknowledges that the equal protection argument “could mean that everybody has to have the vote. It could mean that…. But it just never did. That was not its understood meaning. And since that was not its meaning in 1871, it’s not its meaning today.”

Fair enough. The very constrained view of the equal protection clause expressed by Scalia in that speech was perfectly consistent with his rulings from the court.

But four years later, in a obscure little case known as Bush v. Gore, Scalia completely reversed himself. Joining Chief Justice William Rehnquist and Justice Clarence Thomas, he decided that the equal protection clause could and should be applied to guarantee an equal right to vote, and he used that reversal to put George W. Bush in the White House. The meaning of the 14th Amendment in 1871 and in 1996 suddenly changed in 2000.

Let me be clear here. The Supreme Court is the Supreme Court, they ruled as they ruled in 2000, and there has never been a question in my mind that George W. Bush was the legitimate president of the United States under the processes outlined under the Constitution. The moment the Court ruled as it did, the question of legitimacy was settled. Period.

But please, spare me the intellectual sanctimony. Scalia and others feign a purity of heart and devotion to originalism that in reality they are quite ready to throw overboard when the reward is large enough. They lack the courage of their claimed convictions.

164 comments Add your comment

Brad Steel

October 28th, 2009
12:58 pm

Scalia’s originalism position is founded in his intellectual arrogance, inflexible over-confidence, conservative pandering and other run-of-the-mill typical douchebag earmarks.

Nail Aluminum

October 28th, 2009
1:00 pm

Brad Steel

October 28th, 2009
12:58 pm

Ditto to you, Brad.

Mrs. Godzilla

October 28th, 2009
1:00 pm

Scalia.

Putz.

Paul

October 28th, 2009
1:01 pm

I kinda liked his judicial activism when it came to the Second Amendment. I didn’t like his decision, I just liked the vision of him jumping through hoops.

Isn’t it nice, though, that general philosophies have exceptions or modifications for real-world realities?

Nail Aluminum

October 28th, 2009
1:01 pm

Godzilla.

Beast.

USinUK

October 28th, 2009
1:01 pm

Mrs. G – pithy but well said.

Taxpayer

October 28th, 2009
1:02 pm

Jay,

Are you TRYING to stir up the strict constitutionalists amongst us. You know how picky some of them can be about ‘interpreting’ the Constitution.

stands for decibels

October 28th, 2009
1:02 pm

Try as Scalia might, there is no way those two positions can be honestly reconciled.

Thing is, Fat Tony, he don’t gotta reconcile nothin’, knowhatI’msayin?

Doggone/GA

October 28th, 2009
1:02 pm

“The Supreme Court is the Supreme Court, they ruled as they ruled in 2000, and there has never been a question in my mind that George W. Bush was the legitimate president of the United States under the processes outlined under the Constitution.”

And there has ALWAYS been a question in MY mind. The Constitution gives Congress the job of deciding Presidential elections, via the votes of the electors…not the Supreme Court. The Court should have rejected that suit and put it back on Congress to decide. The result would almost certainly have been the same, but it would have been a Constitutional result.

Mrs. Godzilla

October 28th, 2009
1:03 pm

Nail Aluminum

That’d be MRS. Beast to you!

Rob

October 28th, 2009
1:04 pm

Mr. Bookman:

Nice try. Your facts are inaccurate with respect “[t]he very same Congress that passed the 14th amendment by the required two-thirds vote in the House and Senate also passed a law that mandated the segregation of schools in the District of Columbia.” The 37th Congress created segregated public schools for black children in Washington D.C. in 1862, but it was a later, different Congress (the 39th Congress), that in 1866 proposed the Fourteenth Amendment, which was ratified in 1868. Indeed, at no time after the Fourteenth Amendment did any Congress vote in favor of segregated schools in the District of Columbia.

So, next time you critize someone for “intellectual sanctimony,” at least make sure that you have your facts straight.

Nail Aluminum

October 28th, 2009
1:04 pm

And MR. Aluminum to you.

righty

October 28th, 2009
1:05 pm

Jay, we get it, you don’t like Scalia (and a host of others who actually work to follow the founder’s intentions in the constitution). At least he tries to follow OUR constitution rather than use foreign law as an admixture to the formula (Sotomayer).

Why can’t liberals just admit that the constitution is nothing more than a roadblock for their statist ideas? Oh wait, that’s right, an illusionist is only good as long as his smoke and mirrors hold up and a statist is only appealing as long as his slow march towards tyranny is never exposed for what it really is.

But it is nice to hear an admission that Bush was legitimate for his first term!

Jimmy Carter

October 28th, 2009
1:05 pm

Rob

October 28th, 2009
1:04 pm

DAMN!! Even Chuck Norris couldn’t have slammed Jay any harder. Good job.

Marsh

October 28th, 2009
1:06 pm

Scalia only sees state’s rights when it’s convenient for him. As soon as he sees something he dislikes, he is quick to find a reason the federal government should have jursidiction over that issue.

Hypocrite.

Jimmy Carter

October 28th, 2009
1:07 pm

righty

October 28th, 2009
1:05 pm

Dude, you and Rob need to form a MMA team. You’re slamming Jay “left and right”.

POPCORN VENDOR…..send me TWO bags please.

Bruno

October 28th, 2009
1:08 pm

“Let me be clear here. The Supreme Court is the Supreme Court, they ruled as they ruled in 2000, and there has never been a question in my mind that George W. Bush was the legitimate president of the United States under the processes outlined under the Constitution. The moment the Court ruled as it did, the question of legitimacy was settled. Period.”

Jay, my respect for you just went up a few notches.

“But please, spare me the intellectual sanctimony.”

I know what you mean, but it appears to be a human characteristic (on both sides of the political aisle, though you choose to highlight an example on only one side of the aisle) that we will just have to endure.

Angry Black Man

October 28th, 2009
1:09 pm

Rob

Since you’re the knowledgable one on Congress. How many members of the 39th were there from the 37th? Was there a complete removal of all incumbents?

I think what Jay was trying to say is that Congress, the body not the individual persons, voted for both. I may be wrong though. I can’t honestly say I think for Jay. Excellent points you’ve made though.

stands for decibels

October 28th, 2009
1:11 pm

Wow, took me about five seconds…

In 1862, 1864, 1866, and 1874, the Congress enacted legislation which specifically provided for separation of the races in the schools of the District of Columbia.

Don’t worry, Rob–”Jimmy” still wants a date.

Doggone/GA

October 28th, 2009
1:11 pm

“I think what Jay was trying to say is that Congress, the body not the individual persons, voted for both”

That’s how I read it too.

Taxpayer

October 28th, 2009
1:12 pm

Isn’t it nice, though, that general philosophies have exceptions or modifications for real-world realities?

Those are so NOT the words of a devout follower of the Republican faith. Blasphemer! Screeeeechhhh!

SouthGaDawg

October 28th, 2009
1:12 pm

Jay,

The problem with opinions is that they’re like a-holes. Everyone has one. However, the problem with opinion-writers is that its a-holes who are writing the opinions.

Further, have no idea what you’re talking about here. Stick with what you do best : being a mouthpiece of the liberals. Leave the constitution to someone who actually knows what they’re talking aobut.

Bruno

October 28th, 2009
1:12 pm

Gotta run. The boss (my rabbit) is demanding attention.

Doggone/GA

October 28th, 2009
1:14 pm

“Further, have no idea what you’re talking about here.” Stick
“Leave the constitution to someone who actually knows what they’re talking aobut”

Hah!

Paul

October 28th, 2009
1:15 pm

DoggoneGA

I believe the suit resulted from a decision of the Florida Supreme Court, so it was on the court path. And that was a result of an earlier case, brought by Gore, that went to the Florida court. So even VP Gore’s lawyers thought it appropriate to follow the court path.

Captain USA

October 28th, 2009
1:15 pm

Tony Scalia is the same as any other Connie, their “bedrock principals” go what ever way the wind blows at the time. States rights are good for civil rights, voting, abortions. States rights are bad for assisted suicide, medical marijuana, prostitution. Good for things they (publicly) like, bad for things they (publicly) dislike.
One can but pray for a heart attack for Fat Tony.

AmVet

October 28th, 2009
1:16 pm

“that anchor, that rock, that unchanging institution that forms the American polity,”

Yet the “strict Constitutionalists” are generally of the political party that wants to constitutionally define marriage and additionally ban gay unions. And guarantee the right to use the word “God” in the Pledge of Allegiance and the national motto. And to specifically permit prayer at school meetings and ceremonies.

Among innumerable others…

Paul

October 28th, 2009
1:17 pm

Taxpayer

Still tryin’ to figure it out, aren’t you?

:-)

Pokey

October 28th, 2009
1:17 pm

JB, your post begs some questions…

What does the history of the 14th Amendment vis-s-vis segregation have to do with with its application voting rights?

Was the D.C. segregation law ever challenged in court prior to 1954?

Is there a legal distiction to be made between the 14th Amendment’s application to “voting rights” and its application to votes that have actually been cast?

So JB did the Florida’s Supreme Court’s ever-changing recount standards and selective application violate the Constitution??

Al Gore’s Inconvenient Truth = The Electoral College

Another well written but patently specious JB blog post…

Taxpayer

October 28th, 2009
1:18 pm

Don’t worry, Rob–”Jimmy” still wants a date.

I don’t think so. It looks more like “Jimmy” is just using a few others to try to get closer to Jay. Even the choice of moniker is actually intended to attract Jay’s attention. Everyone knows that the real Jimmy Carter is just the most morally and ethically sound president that we’ve had.

Doggone/GA

October 28th, 2009
1:19 pm

“I believe the suit resulted from a decision of the Florida Supreme Court, so it was on the court path.”

Except that election law gives elections to the state, not the nation…which is why we have such a hodge-podge of election systems.

“And that was a result of an earlier case, brought by Gore, that went to the Florida court.”

And that court had to reconcile 2 conflicting laws in the Florida statutes. They went with the most reasonable choice, which was to have a complete recount and let the actual votes decide. (I listened to the arguments live) The Supreme Court halted that recount on very questionable grounds and gave the election to Bush.

They should have allowed the Florida election results to be determined at that level, as provided in the Constitution. They should have allowed Florida to choose their electors per the results of the election, and they should have thrown ANY question back on to the Congress – as per the Constitution.

” So even VP Gore’s lawyers thought it appropriate to follow the court path”

That doesn’t make the COURT’S decision any more correct.

Jimmy Carter

October 28th, 2009
1:19 pm

stands for decibels

October 28th, 2009
1:11 pm

Nah, no need for a date. I’m happily married. However, back in the day I was rather selective. I wanted someone with intelligence and a strong work ethic. That ruled out the lib girls. Fortunately I married a wonderful woman who possessed those traits. Together, and through no govt assistance, we raised some great kids and built a strong company that I recently sold.

Perhaps you should offer your dating service for “free” to your fellow libs. To borrow a line from Joe the Biden, that would be the “patriotic” thing to do, right?

USinUK

October 28th, 2009
1:20 pm

heading out for the evening … have a good one!! :-)

(and remember … Chuck Norris doesn’t wear a condom because there is NO protection from Chuck Norris!)

night all

Jimmy Carter

October 28th, 2009
1:21 pm

Taxpayer

October 28th, 2009
1:18 pm

Was there any “underlying racism” in your post or was I just commiting adultery in my heart again?

Jimmy Carter

October 28th, 2009
1:22 pm

Captain USA

October 28th, 2009
1:15 pm

Sounds like you need a course in “sensitivity training” the libs created.

Matilda

October 28th, 2009
1:23 pm

Great points, Captain and AmVet. The Constitution, (like the Bible, history books, and newspapers) is used by all kinds of people to rationalize what they want to do and condemn what they don’t. Facts exist independently of our thoughts about them, but don’t try telling that to someone with a document in his hand. “PROOF!” Yeah, whatever.

Taxpayer

October 28th, 2009
1:23 pm

Still tryin’ to figure it out, aren’t you?

As a matter of fact, I’ll likely always be trying to figure “it” out. After all, “it” covers so much territory. You could help settle one of those “its” though. Were you invaded? :smile:

I Report (-: You Whine )-: mmm, mmmm, mmmmm!

October 28th, 2009
1:23 pm

What the hell brought all this on?

Reality

October 28th, 2009
1:24 pm

“Activist Judges,” are they the ones who could no longer stomach Jim Crow, women being treated as property, eighteen year olds who served their country and not being able to vote, all white juries in the south during Jim Crow, all white primaries in the south, segregated schools, Separate But Inherently Unequal, poll taxes, literacy tests, women getting abortions in back alleys with coat hangers, black day at the county fair, white day at the county fair. Southerners, this is your heritage, and you love those strict constructionist judges who interpret the Constitution narrowly so,so much.

Paul

October 28th, 2009
1:24 pm

DoggoneGA

Isn’t the idea that the Court is not a political body, but the highest judicial body, and that when a political system (election) is thought to be fraudulent or following nonconstitutional principles, it’s appropriate to remove it from the political realm and send it to the judiciary for decision?

@@

October 28th, 2009
1:25 pm

Damn, jay!!! In YOUR OPINION Bush won in 2000?

How does that square with your liberal contributors here?

How does it square with Gore?

He kept showing the courts his big old BooBoo and then he cried and cried when smacked with the ruler. Movin’ on…

““““““““““““““““

Since I’m addressing bleeding-heart liberals, and although I was thinking in different terms regarding opt-out and state’s rights, I’ll go with liberal stupidity.

The unintended consequences of Reid’s “opt-out” nonsense. It can get harry.

One problem that has cropped up in policy areas where states have differential policies is how it affects migration patterns. Will unhealthy people migrate to states with a public option if their own jurisdiction opts out of the national system? States may be tempted to establish residency requirements for health care the way they did for welfare. This may make it more difficult for the uninsured to get coverage in those areas.

From a governance standpoint, the public option creates a worrisome precedent for other policy areas. If states don’t like congressional decisions on gun control, climate change or immigration, will state legislators demand an opt-out? If this were 1965 and there were a Medicare opt-out, it is conceivable we would have ended up with two-thirds of the country having Medicare, while one-third did not.

With any comprehensive reform, there always are unanticipated consequences. By using a pragmatic mechanism to solve the political problem of overcoming a Senate filibuster, opt-out proponents have created a precedent they later will regret. Opponents most likely will employ that idea in other policy areas when people are unhappy with legislative decisions. The marble cake will expand in scope throughout American federalism.

http://www.politico.com/news/stories/1009/28791_Page2.html

If it comes to pass, here’s hoping Georgia will opt out — sending desperate liberals in search of THEIR sanctuary elsewhere.

Paul

October 28th, 2009
1:26 pm

Why Taxpayer ! (1:23)

Are you coming on to me?!!?

Taxpayer

October 28th, 2009
1:26 pm

“Jimmy”,

You need to get re-wired. Where in the world did you make a connection to racism from what I posted. I think your innermost feelings may be bleeding over onto the screen.

wyldbyllhyltnyr

October 28th, 2009
1:27 pm

Let me try to explain this to you in a way you might be able to understand as it is clear that you cannot following the nuanced thinking and logic Scalia applies to the law.

My late father, may G-d rest his soul, sold hay from our country home. He did this not only the grass growth required it and to make a few pennies, but because it enabled him to visit with a lot of people in the evenings and, just klike Ol’ Wyld Byll, Daddy was a people person above all. We had performance quarterhorses, largely shown in cutting, reining, and working cow horse classes, that sported the richest bloodlines available. We had three yearling colts in the early 80’s that were the product of our good Joe Cody bred mares being covered by Mr. San Peppy – all three ultimatel sold for more than $30,000 – quite a pretty penny in that day. On evening, we had them up near the lodge to show to a potential buyer who had flown in from Europe. While waiting for the buyer, this poor old coloured boy who had just bought a his first horse for $50 came to buy four bales of hay which was all that he could afford. The coloured boy’s name was Rennie and Daddy was always gave him oversized bales because he was fond of him since Rennie was more well mannered and respectful than most of the coloured out there. Rennie, looked at the three royally bred amnd perfectly conformed stud prospects in the round round pen and told Daddy that he, Rennie who had owned a $50 horse for 10 days, knew where my Daddy, who had bred royal quarterhorses since before there was a breed, that he knew where Daddy could “all the horses he wanted that looked like that for $25 to 30.

Now, Jay, just like that old coloured boy when it came to Daddy’s stock, you don’t have the base of knowledge and impartial discernment to make a call on Scalia’s logic.

Taxpayer

October 28th, 2009
1:28 pm

Are you coming on to me?!!?

Well, that does sound like what a pod person might say.

Jimmy Carter

October 28th, 2009
1:28 pm

Taxpayer

October 28th, 2009
1:26 pm

Things just do go over your head, don’t they? The “racism” is one of Carter’s defaults on many issues. Read something other than Bookman or the Huffington Post.

Taxpayer

October 28th, 2009
1:29 pm

What is it with Republicans and their equines.

Doggone/GA

October 28th, 2009
1:30 pm

“Isn’t the idea that the Court is not a political body, but the highest judicial body, and that when a political system (election) is thought to be fraudulent or following nonconstitutional principles, it’s appropriate to remove it from the political realm and send it to the judiciary for decision?”

Not when the Court itself violates the provisions clearly stated in the constitution. There was nothing unconstitutional about Florida’s State Supreme Court decision. Isn’t it the court’s (State Supreme Court) job to reconcile inconsistencies in the laws and make determinations that resolve those inconsistencies? That’s what the Florida State Supreme Court DID.

The Consitution gives the elections to the states. The national government has no place in those elections UNTIL the electors have cast their votes. Then the Constitution gives the Congress the job of resolving any problems. ONLY IF the Congress does something unconstitutional in resolving a conflict should the national Supreme Court be involved.

They jumped in ahead of the Congress, and Congress let them do it with no complaint. That decision SHOULD HAVE triggered a Constitutional battle over proper use of Constitutional power – but it didn’t.

Paul

October 28th, 2009
1:30 pm

Taxpayer

Against my better judgment:

what’s a pod person….

Taxpayer

October 28th, 2009
1:32 pm

Jimmy,

So, your choice of moniker was just to let the rest of us know that racism is something that is always on your mind. Your default setting. Hmmmm. Interesting.

Jimmy Carter

October 28th, 2009
1:33 pm

I Report (-: You Whine )-: mmm, mmmm, mmmmm!

October 28th, 2009
1:23 pm

You have to have some conservative to attack with headlines like these:

Dem moderates challenge Reid on health care plan… (Jay – here’s a whole new series of articles. Just replace “Lieberman” with the individual names of the other dems who oppose the plan)

OCTOBER DEADLIEST MONTH IN AFGHAN WAR … (while Barry, or Nero, plays hoops and golf)

U.S. official resigns over Afghan war; No longer knows why his nation is fighting… (see above)

Mich. Democrat: Pelosi ‘not happy with me’ over trying to pull govmnt funded abortion from bill… (Nan is juuuuusst not happy with much of anything)

Barney Frank: ‘We Are Trying On Every Front To Increase The Role Of Government’… (Barney Frank…..need I say more?)

WASHINGTON TIMES: Top donors offered ‘wide range of perks’ since Obama took office… (yep, the “transparent” administration)

Consumer Confidence Fell in October From the Previous Month… (mmm, mmm, mmmm, Barack Hussein Obama…)

PRAVDA: America Moving from Kingdom of Cash to Socialism…(even the Russians recognize what’s going on).

Taxpayer

October 28th, 2009
1:33 pm

Paul,

I just assumed that you watched the link in my earlier post to the trailer of Invasion of the Body Snatchers.

Angry Black Man

October 28th, 2009
1:34 pm

WBH

Please join the 21st century. Coloured? But then again, I’ll leave you to your memories.

Jimmy Carter

October 28th, 2009
1:36 pm

Taxpayer

October 28th, 2009
1:32 pm

Wrong again, Taxpayer. You need to tell you fellow “thought police” to find another target.

You apparently don’t read much outside of the socialist hemisphere. JC spoke of a higher level of racism in the south, and later said those opposing Barry were practicing a form of “underlying racism”.

Give Jesse Jackson a call. You and he would be pure hell on the “you’re a racist” tour.

@@

October 28th, 2009
1:38 pm

:-OMG!

Wyld knows about cuttin’ horses.

Sukey was her name. A little dun mare, she was. Could cut a barrel so sharp, my reflex was to remove a foot from stirrup for fear she’d take the barrel, herself and me down in the turn.

Never did….not once.

Corey

October 28th, 2009
1:38 pm

Fact. An individual appealed his conviction, and his appeal reached the Supreme Court. The only justice that ruled in the individual’s favor was Scalia. Not even Thomas saw it like Scalia. The attorney representing the individual was an ethnic Italian. So is Scalia. I personall know the attorney. She told me that when she argued the case before the Supreme Court Mr. Scalia played with her name because it was an Italian name and said it rhymed with Saclia. This sounds like Mr. Scalia only ruled in the individual’s favor because the individual was represented by an Italian. Isn’t that a little racist? An 8 to 1 vote; not even the most liberal members of the court rendered a liberal decision, but Scalia did. Isn’t that strange?

Taxpayer

October 28th, 2009
1:39 pm

No, I’m not wrong about you, Jimmy. You clearly have underlying issues and your use of the “racism” card just helped to bring it to the forefront.

Jimmy Carter

October 28th, 2009
1:41 pm

Taxpayer

October 28th, 2009
1:39 pm

Still wrong, Taxpayer. Keep trying though. Your attempts to gain the higher ground are hilarious.

wyldbyllhyltnyr

October 28th, 2009
1:42 pm

ABM, please accept my apology and regrets for offending you.

It’s just that if you would have asked Rennie, he would have identified himself as a coloured boy. He and his family were good people who went to church and held jobs, and I went to school with several of his grandchildren and they often wore my old clothes that mother had given to charity. Its just that to me, Rennie will always be just a good old coloured boy, written with no disrespect.

I know its different today, I watch the Real Housewives of Atlanta and know they are a credit to their races, even that one that got beaten to death in a parking lot. I just have fond memories of days gone by as I think a lot of people do.

Jimmy Carter

October 28th, 2009
1:42 pm

Taxpayer

October 28th, 2009
1:39 pm

By the way, I was refering to comments made by JC. Since he also used the word “racism” makes him a racist in your world, right? AHAHAHAHAHAHAHAHA!!

Rob

October 28th, 2009
1:43 pm

stands for decibels:

Just like the wise Mr. Bookman, your facts are off. If you dig a little deeper than an Atlantic article (try Michael McConnell’s 1995 law review article), you will learn that after the 14th Amendment was enacted, Congress did not vote to approve/enact segregated schools, (although it is true that Congress appropriated money for the segregated schools that already existed). In fact, in the years immediately following ratification of the 14th Amendment, as Congress acted to enact legislation enforcing the requirements of the Fourteenth Amendment, a substantial majority of both houses of Congress repeatedly voted to abolish segregation in the public schools. Although filibuster tactics and other procedural obstacles prevented ultimate passage of legislation abolishing segregated schools, these votes and the history of Congress’s actions provide powerful justification to an originalist’s (e.g., Scalia’s) understanding of the Fourteenth Amendment that segregated public schools are (and have always been) unconstitutional.

Catchy offer for a date with “Jimmy.” Quite clever, but I will pass.

wyldbyllhyltnyr

October 28th, 2009
1:44 pm

@@

October 28th, 2009
1:38 pm

That’s not the only thing i know a lot about that would get your blood running and make you feel good. There’s a lot of time on my calendar top get together for a little drinky-poo and show you the albums of our stock.

Jimmy Carter

October 28th, 2009
1:47 pm

Corey

October 28th, 2009
1:38 pm

How about providing Scalia’s rulings on every other case he has ever heard, provide the ethnicity of the lawyers, and then I’ll determine whether or not I agree with you.

Taxpayer

October 28th, 2009
1:47 pm

Jimmy,

I understand. Really, I do.

Booger Sandwich

October 28th, 2009
1:48 pm

Im sure this argument and many others could be settled by “The Fists of Chuck Norris”.

Doggone/GA

October 28th, 2009
1:50 pm

“Im sure this argument and many others could be settled by “The Fists of Chuck Norris”.”

Chuck might disagree. I heard a story about him, years ago, where a drunk in a bar challenged him to a fight. Chuck just looked at him, said something like “hey man, I can take you easy…you know it, and I know it. Why not just sit down and have a beer with me?” End of “fight”

Angry Black Man

October 28th, 2009
1:50 pm

WBH

I wasn’t offended at all, just a bit bemused by your story. Being a child myself thru the 80’s, I can’t say that I would have identified myself as coloured, and I grew up in Alabama. There’s far too many negatives attached to that term. I would have used black for me personally, but I can’t think or answer for Rennie.

Angry Black Man

October 28th, 2009
1:53 pm

Deforestation in the Amazon Rain Forests isn’t caused by loggers cutting down trees. Chuck Norris was in the Amazon Basin working on his roundhouse kicks.

N.J.

October 28th, 2009
1:55 pm

Scalia has made dozens of decisions that have walked all over his concept of originalism. Usually in favor of large businesses and corporations.

You can go back further than “Brown v Board of Education” to the one where the fiction of “corporate personhood” was created by the Supreme Court. Basically you cannot find anything in the constitution at all which would create any sort of right for a group entity. Nowhere. It deals with the rights of individuals. The original court decisions about corporations started early on:

For centuries, corporations have been considered beings apart from their human owners, yet sharing with them some attributes, such as the right to make contracts and own property. Originally, corporations were a relatively rare form of organization. The government granted charters to corporations, delineating their specific functions. Their powers were presumed limited to those their charter spelled out.

“A corporation is an artificial being, invisible, intangible,” Chief Justice John Marshall wrote in an 1819 case. “It possesses only those properties which the charter of its creation confers upon it.”

This is about as originalist as you get Yet in the later part of that century the courts give these artificial entities full human rights, and in some cases special rights that no living individual shares.

Yet you would be hard placed to find Scalia opposing corporate personhood. When it is argued with him he does the flip flop of allowing the change because the times had changed. This has been the basis of his opposition to anti corporate cases. He simply says. TIMES CHANGED, in ever clever and side straddling ways.

mike

October 28th, 2009
1:56 pm

“But here’s where things get sticky for Scalia and other “originalists.” The very same Congress that passed the 14th amendment by the required two-thirds vote in the House and Senate also passed a law that mandated the segregation of schools in the District of Columbia.

In 1868, in other words, the 14th Amendment very clearly did not ban school segregation. ”

Nonsense. An act of Congress can be declared unconstitutional. In this case, the law than mandated the segregation of schools in the District of Columbia was unconstitutional. Specifically, it violated the 14th Amendment.

Normal

October 28th, 2009
1:58 pm

ABM, I hear Chuck Norris has a toothpick franchise, too…

@@

October 28th, 2009
1:58 pm

Good grief! You’re in the islands, Byll.

Besides…my leather chaps are at the cleaners. My racing bat? Don’t know where that thing is.

Jimmy Carter

October 28th, 2009
1:59 pm

Taxpayer

October 28th, 2009
1:47 pm

Awwww. How sweet. Thank you, Taxpayer, thank you.

Taxpayer

October 28th, 2009
2:00 pm

Dang, does Chuck Norris also have a blue ox named Babe.

Angry Black Man

October 28th, 2009
2:01 pm

Normal

Chuck Norris shaves with a chainsaw and picks his teeth with a scythe.

Angry Black Man

October 28th, 2009
2:03 pm

Taxpayer

Nah, Chuck Norris grilled Babe for the 4th of July last year.

Jimmy Carter

October 28th, 2009
2:04 pm

Taxpayer

October 28th, 2009
2:00 pm

Oops! You clearly have underlying issues and your use of the “Chuck Norris” card just helped to bring it to the forefront.

HAHAHAHAHAHAHAHAHAHAHAHAHAHA!!!

Taxpayer

October 28th, 2009
2:07 pm

And, Jimmy, don’t forget to pay those taxes due from the sale of that business. We would not want Obama to have to send the IRS after you. After all, there are lots of Democrats out there in need of you tax money. They count on it for those car payments and such.

Taxpayer

October 28th, 2009
2:08 pm

Nah, Chuck Norris grilled Babe for the 4th of July last year.

Must have been a big party ’cause that’s a lot of bull. :smile:

Jimmy Carter

October 28th, 2009
2:09 pm

Taxpayer

October 28th, 2009
2:07 pm

Thank you for your interest, Taxpayer. Rest assured all taxes were paid. I sold the business BEFORE Barry could raise the tax rate. My tax attorneys suggested I do so (I was going to wait until next year to sell) and it was definitely good advise.

You clearly have underlying issues and your use of the “Obama” card just helped to bring it to the forefront. HAHAHAHAHAHAHAHAHAHAHA!!!

Doggone/GA

October 28th, 2009
2:10 pm

“that’s a lot of bull”

cute come-back…but Babe was an ox.

@@

October 28th, 2009
2:11 pm

ABM:

I hope you take this with the good nature in which it’s intended.

We’re all coloured in one way or another. In the winter I’m a shade lighter than I am in the summer. If we were absent color, we’d be invisible. When it comes to politicians on The Hill, I’ve been feeling invisible for some time.

You?

Jimmy Carter

October 28th, 2009
2:12 pm

Doggone/GA

October 28th, 2009
2:10 pm

Better watch out, Doggone. Taxpayer may spot some underlying issues with you based on your use of the “ox” card. HAHAHAHAHAHAHA!!

Taxpayer

October 28th, 2009
2:12 pm

cute come-back…but Babe was an ox.

Male or female?

Angry Black Man

October 28th, 2009
2:13 pm

Taxpayer

Chuck Norris Facts is saved as a favorite on my PC. Anytime I need a good laugh, I just pull it up. There’s also one for Jack Bauer.

Doggone/GA

October 28th, 2009
2:15 pm

“Taxpayer may spot some underlying issues with you based on your use of the “ox” card”

sound more to me like you have an underlying issue that Taxpayer brings out

Jimmy Carter

October 28th, 2009
2:15 pm

Taxpayer

October 28th, 2009
2:12 pm

Planning on dating an ox or something? You clearly have underlying issues and your use of the “male or female” card just helped to bring it to the forefront.

Doggone/GA

October 28th, 2009
2:15 pm

“Male or female?”

I refer you to the dictionary for clarification

Doggone/GA

October 28th, 2009
2:16 pm

“You clearly have underlying issues ”

thank you for proving my point so quickly, your participation in this game is appreciated

Angry Black Man

October 28th, 2009
2:18 pm

@@

Taken with a smile. There was a joke that I read a long time ago that I always think of when I see the word coloured used to describe a person. It went something like this:

Black guy talking to a White guy…

You turn red when you get angry,
and blue when you get cold.
You turn green you get sick,
and purple when you get bruised.
You turn brown when you get a tan,
and red when you get sunburned.

I, on the other hand, am brown
whether hot or cold, sick or well,
angry or happy.

Now which of the two of us are really coloured?

Jimmy Carter

October 28th, 2009
2:18 pm

Doggone/GA

October 28th, 2009
2:16 pm

Hey, that’s my line! AT least I offered parting gifts.

FinnMcCool

October 28th, 2009
2:19 pm

Hmm, I guess this isn’t the place to discuss Palin’s new company, Pie Spy.

Oh well.

Booger Sandwich

October 28th, 2009
2:19 pm

The 11th commandment is “Thou shalt not piss off Chuck Norris” This commandment is rarely enforced, as it is impossible to accomplish.

Two wrongs don’t make a right. Unless you’re Chuck Norris. Then two wrongs make a roundhouse kick to the face.

Chuck Norris once rode a nine foot grizzly bear through an automatic car wash, instead of taking a shower.

There are no such things as tornados. Chuck Norris just hates trailer parks.

Jimmy Carter

October 28th, 2009
2:19 pm

Doggone/GA

October 28th, 2009
2:15 pm

I think you just made Taxpayer’s head explode.

Taxpayer

October 28th, 2009
2:19 pm

Doggone,

I was referring to Babe. If Babe were a male ox, then he would be referred to as a bull.

Doggone/GA

October 28th, 2009
2:22 pm

“If Babe were a male ox, then he would be referred to as a bull.”

OX: “the adult castrated male of the genus Bos”
BULL: “The uncastrated adult male of domestic cattle”

@@

October 28th, 2009
2:22 pm

Now come on ABM, you’re human.

Red=angry or sunburned

Blue=cold

Green=Sick

Purple=Bruised

I’m convinced you have some underlying colors.

(ISH)

stands for decibels

October 28th, 2009
2:22 pm

Dunno, rob, it seems kinda muddy, that argument you had been making earlier. Let’s pick it up here…

(although it is true that Congress appropriated money for the segregated schools that already existed). In fact, in the years immediately following ratification of the 14th Amendment, as Congress acted to enact legislation enforcing the requirements of the Fourteenth Amendment, a substantial majority of both houses of Congress repeatedly voted to abolish segregation in the public schools. Although filibuster tactics and other procedural obstacles prevented ultimate passage of legislation abolishing segregated schools, these votes and the history of Congress’s actions provide powerful justification to an originalist’s (e.g., Scalia’s) understanding of the Fourteenth Amendment that segregated public schools are (and have always been) unconstitutional.

I can practically hear a time-traveling Tony telling that Congress “You don’t gotta bill? You don’t gotta bill. I don’t care about your vote counts. And to the negroes who aren’t happy about the legality of this separate-but-equal status quo I say Va-fangulo. Next!”

Jimmy Carter

October 28th, 2009
2:23 pm

Taxpayer

October 28th, 2009
2:19 pm

I understand. Really, I do.

Doggone/GA

October 28th, 2009
2:23 pm

“I think you just made Taxpayer’s head explode”

and I take leave to doubt that…but it would appear that I’ve been successful in making YOUR mouth explode