RIP Antonin Scalia

Strohs

 

No way. The only reason to drink Busch ever was to purge your colon to make weight.

 

I teach this stuff and for the record Whitman is the only one in this conversation who understands what he's talking about.

 

Actually, I think Twirling Time has a really good point about Busch.

 

Save it for the PMs.

 

Huh?

 

It was a funny reference to DW's references about getting PMs from other posters praising his rigorous and unyieldingly objective logic in various debates.

 

If you understand what Dick is talking about, you're two steps behind. He's never talking about what he's talking about.

 

Actually, Scalia would have said that he is doing just what you are suggesting - going by what is written. The SCOTUS adherents of originalism say they are looking at the drafters' original intent, as reflected in the precise words chosen.

The area that gets the most attention is substantive due process, particularly going back to Griswold v. CT (1965) which relied on the idea that Constitutional rights include a "penumbra of protection" in addition to the specific guarantees "that help give them life and substance." In this case, the Court concluded there was a penumbra of "privacy surrounding the marriage relationship," finding a state statute making use of contraceptives by a married couple unconstitutional. Scalia would limit the question to the specifically enumerated guarantees, leaving any other rights to be decided by the states or through Constitutional amendment.

This does not always mean an originalist interpretation will support what some may think is the conservative view, while a broader interpretation will support what some may think is the liberal view. For example, in Kelo v. City of New London, it was Thomas who wrote a dissent expressing concern about the broad use of eminent domain allowed by the (liberal justices) majority opinion, to the detriment of poor communities. As an originalist, he complained about the extension of the phrase "public use" to include "public purpose" - and then applying that phrase that doesn't appear in the Constitution in a broad fashion.

In my world of state taxation, the primary limitation on states' ability to impose taxes is something called the negative or dormant commerce clause. The idea is that in giving Congress the authority to regulate interstate commerce, it also, by implication, prohibits any state taxation that discriminates against interstate commerce. Since states like to design taxes that export imposition on corporations from outside their borders, the dormant commerce clause is frequently relied upon by businesses in successfully challenging state taxes. Scalia and Thomas, however, do not believe there is such a thing as the dormant commerce clause because it's not in the actual words of the Constitution. They would prefer to do away with the concept of a negative Commerce Clause and pretty much (because of the limited value of other Constitutional provisions like equal protection) let states tax corporations and other taxpayers however they want.

 

Good explanation and examples. My only quibble is your assumption that concern for poor community goes against the conservative view.

 

Fair enough. I'll go back and tweak the wording.

 

So, I'd like some of the more politically astute folks here to help out a simpleton like me, if yous don't mind.

Republicans are at risk in enough Senate races that, if they lose, the GOP could lose control of the Senate, right?

Now, I know Mitch McConnell is smart enough to have done his election-year homework, but he HAS to know there's no way in hell Trump gets elected. So, he's gambling that they win all those seats. But if the Democrats win them -- and there are five or six in pretty moderate areas -- he's looking at having a really liberal court for decades.

That's a helluva game of chicken, if you ask this old country boy.