Monday, July 7, 2014

Rant — To The U.S. Supreme Court, Taking Us Back To Where We’ve Never Been

Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.  — Antonin Scalia, Associate Justice of the U.S. Supreme Court as reported by The Huffington Post, quoting from California Lawyer

Antonin Scalia, "Originalist"
His is a simple-minded view of our democracy— that “the majority rules."  If there are five people and three want to go swimming and two want to play tennis.  Do we vote and make every one go swimming or do we let those who want to swim, swim and those who want to play tennis, play tennis.  There are some things you don’t get to vote on because the ultimate goal is to let everyone have as much freedom as possible as long as that freedom doesn’t impinge on another’s. If these rights truly conflict, then, of course they have to be sorted out.

Jefferson himself was reluctant to sign on to the Bill of Rights not because he feared granting too many rights, but because he feared — justifiably it seems — that there would be those with limited mental scope who might come to the conclusion those were the only rights we had. The Scalia–Bork mindset is that if the constitution does not specifically grant you a right, you don’t have it. 

Scalia, like Bork before him, is not stupid, but like Bork, he can only grasp a narrow set of rules, not concepts that give those rules context. With the blinders set by an “originalist” mentality, they are not only immune to the spirit of the law, they cannot possibly imagine the consequences of their decisions or, if they do, they find no need to care.

No need to care. Bork was made attorney general after Watergate President Richard Nixon went through two attorneys general both of whom refused to fire the special investigator closing in on the president’s misdeeds. Bork agreed to do the president’s bidding in exchange for a future appointment to the Supreme Court.  Nixon, as it turned out, was unable to fulfill his part of the bargain.  Reagan made a futile attempt to get Bork on the court. Bork, to his credit, showed his true colors during the hearing and scared the hell out of everyone, including Republicans. Future nominees would no longer tell the committee the truth and nothing but the truth. Scalia, — he may be small-minded, but he is no fool — made it past the questioning.  Later, he began to show his true nature. For example, Scalia felt no need to cancel a hunting trip with his pal Dick Cheney on the eve of a Supreme Court case that involved Cheney, himself.  Scalia also felt no need to recuse himself from the case, something that other justices do routinely in such instances.
Robert Bork, the original "Originalist"

Bork was not around to weigh in on the corporations are people decision by the Scalia court. However, Bork’s judicial decisions were decidedly favorable to corporations.  He also didn’t believe in the separation of Church and State, the voting rights act, reproductive rights and LGBT rights. From what we can tell Bork believed the Constitution’s Equal Protection Clause didn’t apply to women. In fact, as a judge, he held that federal law permits a company to deal with toxic workplace conditions by demanding that female employees be sterilized or lose their jobs. With Scalia on the court, Bork’s spirit lives on.

To Scalia, Roberts, Little Alito and Bork’s Ghost, here is The Fourteenth Amendment Section 1.
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

It is interesting here that the amendment applies to “citizens” of the U.S, that is a “person.” There is no mention of corporations having the same rights as a person.  Can the “originalists” explain?  And while the founders were, generally speaking, wealthy, was it ever their intention that money and speech be construed as the same thing?


Bill Crider said...

Rant on! We've come to a sorry place in our history.

Teri-on-the-sandbar said...

A pleasure to read your rantings. No one does it better!