01-22-2010, 10:07 PM | #11 | |
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01-22-2010, 10:22 PM | #12 | |
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The point is, originalists have rules that they follow because it forces them to limit the scope of their intrepetation. It's not perfect, but it's a framework that lends itself to restraint. Judicial activists have no such rules. They just pick and choose whatever arguments suit them based on the whims of the moment, as suggested by Earl Warren's nasty little phrase, "the evolving standards of decency." That's what can lead the court to bafflingly insist the death penalty is unconstitutional even though it's mentioned in the Constitution. Or to insist there's a right to abortion even though it's clearly not, and in fact, was illegal in every state for 200 years. But tsk, tsk, look at you ... you've gotten me to repeat myself again. Go back and read that old thread, and pretend you're making your arguments all over again. I'm sure it will send a thrill up your leg.
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01-22-2010, 10:44 PM | #13 |
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It is precisely that some groups of individuals are too powerful to be permitted to speak.
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01-22-2010, 10:47 PM | #14 | |
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Some rules. You can call that an anchor for judicial interpretation (as many originalists have), but that analogy only works if you are running in deep water and the anchor can't reach the ocean floor. Sure, you dropped something down from the ship, but why? |
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01-22-2010, 10:55 PM | #15 | |
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"Have we been commanded not to call a prophet an insular racist? Link?" "And yes, [2010] is a very good year to be a Democrat. Perhaps the best year in decades ..." - Cali Coug "Oh dear, granny, what a long tail our puss has got." - Brigham Young |
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01-22-2010, 11:47 PM | #16 |
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Interesting. If that isn't the case, then surely you can point me to the rule which dictates how to determine the answers to the questions I posed above. Surely there is a written rule instead of individual decision-making, right?
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01-23-2010, 12:11 AM | #17 | |
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I do disagree with the premise a little. If deciding cases were as easy as boiling them down to a set of rules, then what do we need you for*? We could stick all case data in a computer and churn out the decision. Man, wouldn't that be great ... force all you bright attorneys to go out and actually contribute to society. *Meaning lawyers, not you personally.
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"Have we been commanded not to call a prophet an insular racist? Link?" "And yes, [2010] is a very good year to be a Democrat. Perhaps the best year in decades ..." - Cali Coug "Oh dear, granny, what a long tail our puss has got." - Brigham Young |
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01-23-2010, 12:17 AM | #18 | |
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Sounds like you have seen the light. |
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01-25-2010, 12:08 AM | #19 | |
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But how about we refocus here, because we're retreading old discussions (which maybe thrills you, but it bores me): You claim the decision "can't be [defended] on the grounds of originalism. Not that Scalia or Thomas actually care." Did you happen to notice that Scalia wrote a concurring opinion, in which he specifically makes the originalist case? Did you notice that, in fact, he attacks an attempt by Stevens to make an originalist argument against the court's decision? If you did, your assertion seems quite perplexing. If you didn't, you may want to try actually reading the opinions the court issues before assuming what is or is not in them.
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"Have we been commanded not to call a prophet an insular racist? Link?" "And yes, [2010] is a very good year to be a Democrat. Perhaps the best year in decades ..." - Cali Coug "Oh dear, granny, what a long tail our puss has got." - Brigham Young |
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01-25-2010, 02:31 AM | #20 | ||
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Even Scalia seemed to note the sad state of his position. See this argument, for example: Quote:
And yes, Stevens did bring up originalism in a transparent attempt to goad Scalia into defending his opinion on originalist grounds. It worked, and you can bet Stevens is having a good laugh about it. He even got Scalia to say his originalist interpretation is "probably" right, so long as you exclude "Jefferson" and "others favoring perpetuation of an agrarian society" (which was a fairly large component of the Republican Party at the time of the founding). Not that he is just picking and choosing the evidence which fits best with his narrative- right? That would, after all, be "results oriented." My argument on originalism, by the way, isn't that "originalism isn't perfect, ergo it's results-oriented." I am pretty confident you already know that, given that "we're retreading old discussions" here, so I will chalk this up as a dishonest attack and move on. Last edited by Cali Coug; 01-25-2010 at 02:33 AM. |
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