Wednesday, February 1, 2017

All you need to know about Neil Gorsuch

Scalia, in defiance of his own earlier and popular writings, embraced the dogma of incorporation based on the due process clause in order to impose the 2nd Amendment on states and locales, rather than incorporation based on the privileges or immunities clause, much more defensible as an understanding of the actual wording and the legislative intent.

And that was the conservative reading of the 2nd according to which it protects an individual right effectively independent of the individual's membership in either a militia (public or private) or the National Guard.

Nobody has yet said anything about Gorsuch's detailed legal views, alleging only that he is an admirer of Scalia and is the same sort of "strict constructionist" as him.

Originalists, textualists, and other forms of strict constructionists, though sharing a general approach, don't necessarily agree in details.

Crucially and one might say definingly, all species of strict constructionists agree in disapproving and holding as fanciful and, er, not strict, interpretations of the constitution that, while not defensible as narrow, literal, textualist, or adhering to original intent, are crucial to the sexual and civil rights revolutions, as well as many other parts of progressivism in the law.

My concern would be with how far he is willing to overturn past courts in major decisions such as Roe or even Griswold, or overturn established institutions such as Medicare and Social Security via long known readings, preferred as strict, of the general welfare and necessary and proper clauses that flatly rule them both out.

I am, I confess, an old fart, and such things worry me.

And also how far he is in sympathy with conservatives' renewed interest in and respect for Lochner, based though it is on a reading of due process that is not remotely literal, textualist, narrow, or plausibly based on original intent, that threatens just about any form of federal or state regulation of the labor market, wages, working conditions, and the like.

People so easily seem to ignore that the conservative "main stream" is in fact very, very radical in a right wing, counter-revolutionary way.

Everything from unemployment compensation to the affirmative right to counsel, from federal and state workplace and product safety regulation to prohibitions of discrimination in employment, actually the whole and entire ball of wax, depends on rulings of constitutionality that strict constructionists are known to profoundly deplore.

Everything since McKinley is at risk, every day one of these guys sits on any federal court.

Of course, strict construction is a fraud, anyway.

In addition to their defections from narrowness, original intent, and adherence to the actual text noted above, I am not aware of anyone of the tribe who, for example, holds that the free exercise clause protects human sacrifice, and pretty much all of them seem to agree it disallows, in some cases (e.g., Quakers refusing to perform military service) if not in all (e.g., parental refusal to provide medical care to their sick children), requiring people to do what their religion forbids.

Gorsuch, for example, is on record as agreeing, in the Hobby Lobby case, it disallows requiring people or even businesses in the hands of people whose religion forbids doing A to provide the means for someone else, not of their religion, to optionally do A.

(How then defend taxation of pacifists to support the military?)

Everyone pretty much accepts that the First Amendment covers electronic or recorded media as well as the paper press and in person, real time speech.

And Republicans are notorious for the conviction that paying somebody else to publish or speak is protected by the Amendment that in so many words protects only speaking and publishing.

But pretty much - though not quite - none of them accepts the blatant absolutism of "Congress shall make no law."

And pretty much everyone agrees wiretaps and most forms of electronic eavesdropping require a warrant.

And there is much else, besides, including the Air Force and paper currency.

Much, much more.

BTW, are any of the judges who might be tempted to overturn Roe of a mind to do so without overturning Griswold?

Without overturning Lawrence?

Would they be content with only that much of restoration of American Christian clericalism and Christian sexual morality?

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