Surprise!

Supreme Court says federal law protects LGBTQ workers from discrimination

Happening now.

Gorsuch and Roberts hand the liberals a surprise win on LGBT rights.

Federal civil rights law protects gay, lesbian and transgender workers, the Supreme Court ruled Monday.

The landmark ruling will extend protections to millions of workers nationwide and is a defeat for the Trump administration, which argued that Title VII of the Civil Rights Act that bars discrimination based on sex did not extend to claims of gender identity and sexual orientation.

The 6-3 opinion was written by Justice Neil Gorsuch and joined by Chief Justice John Roberts and the court's four liberal justices.

This outcome is all the more odd as the government's reading of the portion of the law prohibiting discrimination based on sex as prohibiting only discrimination against an employee or job applicant on account of being male or not being male, or on account of being female or not being female - is surely correct as a fair reading of the actual wording of the thing, understood as it normally would have been at the time of adoption, and indeed as it normally would be understood even today.

That fact, generally urged by conservatives, is nevertheless flatly denied by liberals.

(Don't you love it when liberals piously insist everyone is entitled to his own opinions but not his own facts?

Or when they with equal piety - but still falsely - protest that alternative facts are not facts but untruths?)

So Gorsuch and Roberts?

Neil Gorsuch, one of the Trump appointees, wrote the sweeping decision that extended federal employment protections to gay and transgender workers.

He is proving to be more of an ideological wildcard than many on the left expected.

Chief Justice John Roberts, another Republican-appointed justice who has at times defied predictions, joined to give the ruling a comfortable 6-to-3 margin.

Both are sure to face an uproar from conservatives quarters.

It's difficult to overstate the significance of the decision. 

While the court is establishing a long history of decisions expanding gay rights, this is the first time it spoke directly about the legal protections for transgender individuals.

That the ruling comes out just days after the Trump administration announced it was removing transgender health-insurance protections only puts the issue in stark relief.

Transgender rights is becoming a political battlefield, and a majority of the Supreme Court just announced which side it's on.

Update later that same day.

MSNBC reports Gorsuch wrote that though protection of homosexuals and trans people was doubtless not the intention of the congress that passed the Civil Rights Act of 1964 that doesn't matter because according to the meaning of the words discrimination on account of sex covers discrimination on account of sexual orientation or trans status.

CNN

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids," Gorsuch wrote.

"There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking," the opinion read.

. . . .

But the ruling was also sharply criticized by the conservative Judicial Crisis Network, whose president issued a blistering statement about Gorsuch, who replaced the late Justice Antonin Scalia.


"Justice Scalia would be disappointed that his successor has bungled textualism so badly today, for the sake of appealing to college campuses and editorial boards," said Carrie Severino, a former clerk of Justice Clarence Thomas. 

"This was not judging, this was legislating -- a brute force attack on our constitutional system."

So Gorsuch simply drank the liberal Kool-Aid on the language of the statute.

Alito and Thomas call bullshit.

Kavanaugh is not impressed, either.

Surely a novelty is the spectacle of a conservative judge so egregiously violating his own alleged principles not in order to reach a result required by conservative ideology - as Scalia himself so often did - but to reach one condemned by it and required instead by liberal ideology.

The salt principle and the theory of the unitary executive

The salt principle urges that we read texts of the constitution cum grano salis, which indeed is routinely done by pretty much everybody.

Few would agree the First Amendment ought to be read as ensuring the freedom to shout "Fire!" in a crowded theater, or as prohibiting legally enforceable non-disclosure agreements, or as rendering unenforceable laws punishing revelation of classified information.

No one reads the free exercise clause as guaranteeing a right to religiously practise human sacrifice.

So let us not be absurd and read Article II, Section I, "The executive Power shall be vested in a President of the United States of America," in the manner of the strong theory of the unitary executive expounded by Scalia and others, as excluding the existence of any federal executive agencies, departments, services, or officials that are not subordinate to the authority of the president.

That is, let us not read it so as to exclude the very existence of independent counsel whose job would be to investigate and when appropriate indict and prosecute crimes independently of the authority of the president, counsel who do not report to him and cannot be fired by him and whose work he cannot in any way interfere with.

And let us not read it, as some do in the name of that theory, as affording a unique constitutional shield to the president, disallowing laws, or interpretations of laws, that might result in the president's exercise of his executive authority being criminal, as for example being an abuse of power or being an obstruction of justice, as some seem to have done.

Let us read it with a grain of salt.

Hat tip to Erwin Chemerinsky, We the People, p 133 f.

Reading "We the People"

EC does advert to rulings concerning the 2nd Amendment.

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

EC writes that before Heller no Supreme Court had ever stricken down any law for violating this amendment.

"The Court", he says, "always ruled that the Second Amendment was about a right to have guns for the purpose of militia service" (page 8).

Heller struck down a DC ordinance prohibiting private ownership or possession of handguns, 5 conservatives vs four liberals.

Two years later the same majority held the 2nd protects a fundamental right against state and local governments, too, in McDonald.
.
Scalia went there, to incorporation of the 2nd.

Scalia articulates the position of the court that the part of the text before the comma is merely "prefatory" and only the part after it is "operative".

That part, read fairly, says without qualification that the right of the people to keep and bear arms shall not be infringed.

EC regards the claim that the first part is merely prefatory as arbitrary and in any event cites this case as part of his argument that conservatives only insist upon judicial restraint when it is liberals they want to restrain, and denounce judicial activism when it is liberal judicial activism.

(He says liberals do the opposite).

I mention all this to point out that the conditional view of the text as a legitimate originalist reading seems not to have been considered by anyone, though it fits quite nicely with liberal values as it makes the amendment entirely inoperative.

So to speak.

Reading "We the People"

Picador pb, 2018, by Erwin Chemerinsky.

Fascinating, amusing, information rich, but very poorly edited.

Subtitle: A Progressive Reading of the Constitution for the Twenty-First Century.

I've read to the end of Chapter 2.

Gorsuch's originalism is apparently much like Scalia's.

The book came out late enough for EC to know Chump would name another, but too soon to know it was Kavanaugh.

EC several times defines "originalism", most commonly as insisting a provision of the constitution be read according to the meaning of its words as they would have been understood by an adequately informed reader at the time of adoption.

Departures from such meaning can only be licensed, Scalia insists, by a constitutional amendment.

Scalia in his writings rejected recourse to intentions in the sense of aims or purposes, and expectations as to how provisions would or would not be read or understood, of relevant persons regarding a provision (Framers, authors, ratifiers, voters, or whoever), and heaped contempt upon incorporation.

EC joyfully recounts numerous of his decisions in which he crucially relies on these.

And others in which he flagrantly departs from or flatly contradicts anything remotely like the original meanings of the actual words, sometimes in such cases appealing to aims or expectations as decisive.

And others yet in which he departs conspicuously from all these factors: original meanings, aims, and expectations.

Of course what Scalia never departs from is commitment to reading the text in accordance with conservative ideology in service to conservative values and conservative goals.

EC's point is that originalism is a hoax and a smokescreen, a pretense of objective and value free judging behind which conservatives provide readings and rulings infused with conservative values in service to conservative preferences.

Most of the time what originalism requires we do can't be done, anyway, and mostly when it can it shouldn't.

EC supports a method of interpretation according to which neither the presumed original meanings of the words, nor the aims of relevant persons regarding a provision, nor the expectations as to how it would or would not be read of relevant persons, at the time of adoption, need be controlling.

Any or all may be departed from, and he gives highly persuasive, generally liberal examples, citing cases.

More to come.

Well OK, then

Democrats Must Expand The Supreme Court

Why Democrats Should Pack the Supreme Court

Despite Democrats’ having won the popular vote in six of the last seven presidential elections, the Supreme Court has not had a liberal majority since 1969. 

Because Senate Majority Leader Mitch McConnell straight-out stole the seat vacated by the death of Justice Antonin Scalia early in 2016, a seat that should have been filled by President Barack Obama’s nominee (Merrick Garland), liberals are unlikely to control the Court for at least another couple of decades. 

As has been frequently noted, recently appointed Justices Neil Gorsuch and Brett Kavanaugh were nominated to the Court by a president who lost the popular vote by nearly three million votes, and were then confirmed by a majority of senators who represented minorities of the American population. 

Even before the appointment of Justice Kavanaugh, the Supreme Court—which has always been a political institution—had become an adjunct of the Republican Party. 

. . . .

However, on this occasion, there is an obvious response to the concern that if Democrats pack the Court, Republicans will just pack in further in their favor at the next opportunity: Republicans are already packing the courts. 

As already noted, Senator McConnell stole the seat that should have gone to Merrick Garland. 

Over the last two years of the Obama presidency, Senator McConnell blocked every presidential nominee to the federal appellate courts but one; in the first two years of Trump’s presidency, McConnell has secured the confirmation of nearly thirty federal appellate judges. 

As noted, Republicans in North Carolina and Florida are openly announcing plans to pack those states’ supreme courts after the 2018 elections. 

In that political context, for Democrats not to respond in kind is to commit political suicide.

Gorsuch pays off

Supreme Court upholds Trump's travel ban

The congressional GOP refused to confirm O's last nominee to save the seat for the next president, hoping Trump would win.

He did, and he put up Gorsuch, whom they quickly confirmed.

And Trump got his Muslim ban, 4 conservatives plus Kennedy to 4 liberals.

It looks like the court avoided the question whether the US constitution guarantees foreigners seeking to travel here against religious or other forms of discrimination in immigration law or policy or in policy regarding visas, accepting the administration's claim that it was all about national security and inadequate vetting of applicants in the countries affected.

That is, they accepted it was not a Muslim ban per se.

How Trump’s immigration ban threatens health care, in 3 charts

But these dissenters addressed that issue, claiming the First Amendment does apply and prohibits the ban.

Sotomayor, Ginsburg Issue Strong Dissent of Travel Ban Decision

While the court’s opinion stated the president had “sufficient national security justification” to order the travel ban, Justices Sonia Sotomayor and Ruth Bader Ginsburg issued a scorching dissent calling attention to Trump’s anti-Muslim rhetoric on the campaign road.

“The United States of America is a Nation built upon the promise of religious liberty,” they wrote.

"Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. 

"The Court’s decision today fails to safeguard that fundamental principle. 

 "It leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.”

Rulings Are a Victory for G.O.P. Tactics on Gorsuch

The consequences of President Trump’s nomination of Neil M. Gorsuch to the Supreme Court — and the Republican blockade of President Obama’s nomination of Merrick B. Garland in 2016 for that seat — reverberated powerfully on Tuesday as the court’s conservative majority handed down major decisions on Mr. Trump’s travel ban and on abortion rights.

Social conservatives cheered the court’s ruling that a California law requiring “crisis pregnancy centers” to provide abortion information likely violates the First Amendment, their latest win to advance their anti-abortion cause since Mr. Trump has taken office. 

Some conservatives also viewed the ruling as another opportunity for them to energize their base ahead of the November elections.

. . . .

For many social conservatives, the court’s support of their anti-abortion cause justifies their decision to vote for Mr. Trump in 2016, despite widespread misgivings. 

For many liberals, the decisions underscored their worst fears about the audacious Republican tactics in 2016 to block President Obama’s more progressive nominee for the Supreme Court, Judge Garland, following Justice Antonin Scalia’s death. 

The Republican majority in the Senate refused to convene a hearing or a vote on Judge Garland’s nomination, insisting that the next president should fill the seat — a highly controversial move that some legal scholars called unprecedented.

Be afraid. Be very afraid.

What has happened to America and to WAPO that this influential newspaper wants his apparent ties to a Catholic men's hunting club to seem sinister?

Hunting? Ooooh, bad.

Men's club? Ooooh, very bad.

Justice Scalia spent his last hours with members of this secretive society of elite hunters

That stuff about the Hapsburg fellow is a bit over the top, surely?

"Congress shall make no law . . . . "

His originalism is such ballocks.

Justice Antonin Scalia Tells Audience That the Constitution Favors Religion Over Atheism

So a federal law something like this would actually be constitutional?

The Countries Where They Kill You for Being an Atheist

Sure, the constitution does not forbid every form of political insanity.

Not even some of the forms struck down from US law in its name.

But I'm pretty sure it does forbid these.

And I think some court cases have (mistakenly relying on incorporation, which Scalia actually accepts) struck these down.

In at least seven U.S. states, constitutional provisions are in place that bar atheists from public office and one state, Arkansas, has a law that bars an atheist from testifying as a witness at a trial, the report said.

Why is this a political issue at all?

BooMan and I guess the entire left want public policy to control who gets into what schools, as well as the moral and political content of what is taught, said, or even thought there.

Elite Universities Shouldn't Be Just for Elites

Galloping rather than creeping, their totalitarianism is.

Steve M. makes a valid point and I would like to add that academic survival, let alone anything like success, in college is especially hard for anyone with the misfortune to actually live on campus, and hardest for those living in a freshman dorm.

Animal House was tame, industrious, and quiet as a library by comparison.

Still, Scalia also makes a valid point generally recognized by all but the "reality based," who are known to inhabit their own PC fantasy land.

If you intentionally recruit people who are not up to the minimal standards of ability everybody else meets those people will have a much harder time and a lower success rate.

Doubly political grand jury.

Justice Scalia Explains What Was Wrong With The Ferguson Grand Jury

Liberals ignore that in the normal case of which Scalia wrote the prosecutor has already had his chance to exercise discretion and decline to seek indictment if the totality of evidence makes ultimate conviction, in his view, unlikely or even, if it should happen, unjust.

Political interference denied officials in Ferguson that option.

Since the prosecutor was not allowed to exercise discretion based on the totality of evidence, officials there let the grand jury play that role.

What the liberals and race hustlers are not saying is they wanted a show trial that would drag on for months, drawing enormous public interest to their flood of hate propaganda about police, about the criminal justice system, and about American white people.

When the grand jury refused to indict the wheels got knocked off their propaganda juggernaut.

Sometimes reality is so bad even Ann Coulter can't manage to deform it much in her constant and often totally mendacious campaign of hate directed at liberals.

Weird title.

Liberals willing to fight to the last drop of black blood

Faux or real? Surprise or outrage?

Scalia: You're Looking At Me Like I'm Dumb

Don’t some 40 % of Americans claim they reject evolution and accept Biblical, Young Earth Creationism?

So why the shock at the notion that American Catholics generally, and the orthodox certainly, believe in a personal devil?

Or is it shock that Scalia believes Catholics believe that?

Or is it shock that Scalia believes that?

Or is it shock that Scalia says he believes that?

I’m just not sure.

Anyway, Boo is far from alone on the left in making a public show of reacting adversely.

Scalia himself boldly and even effortlessly squashed Jennifer Senior, promptly asserting a Gingrich and Santorum propaganda point, insisting with specious anger and authority that belief in Satan is a condition of belonging to that cozy, warm, and righteous people who democratically deserve to dominate everything here at home and even around the world, main stream America.

And that anyone not comfortable with that fact or respectful of that belief clearly lives “in circles far from” that blessed and godly main stream.

Neither does he miss the chance to make the altogether fatuous defenses,  always satisfying to the stupid, "Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me [sic] have believed in the Devil."

All which raises the question whether Scalia is just another lying politician for whom protestations of religious faith are a political tool.

By the way, if you look at the positions he takes in the interview with JS, his careless inconsistency and personal faithlessness to his own professed rule of interpretation is egregious.

Whatever may be true of his religion, in jurisprudence the man is as much a faker as the most bare-faced liberal liar in the history of the Supremes, the inventor and first interpreter of the constitutional right to privacy, William O. Douglas.

And, after all, the man is an arrogant bully.

Slavery, rights, conservatives, and the constitution

Conservative Supreme Court Lies of the 19th Century—Part 2

Paul Rosenberg at Crooks & Liars has a series of stupid, insolent, and often slanderous comments on the law and conservative judges that nevertheless address interesting topics.

This is one such topic.

It is not absurd for a society committed to the notion of natural rights underlying legal ones to understand slavery as the condition of one who has no rights that the free are bound to respect.

In Seneca we find that ancient Stoics, from whose ideas our notions of natural law and natural rights descend, could justify slavery by arguing that the slave had forfeited his natural rights in some manner, or the slave owner had somehow acquired a property-right in the slave.

But moderns escaped the need to explain how black slaves from Africa had lost or forfeited their natural right to liberty by denying that anyone of their race had any such right, to begin with, that a white man was bound to respect.

Taney’s announcement that this was so in Dred Scott was no more than a statement of a moral premise upon which the enslavement of blacks by whites rested and had rested all along, though it was also a flat repudiation of the liberal universalism of the Declaration of Independence.

The notion that a man is made a slave for his own benefit was of course an egregious lie, even when Aristotle said it.

And it was also an obvious lie - hyperbole, if you will - that this view of blacks was universal or uncontested at any time up to the date of Taney's ruling, or that his ruling in Dred Scott was based fairly and frankly on the constitution, itself.

In the post below Rosenberg goes at Scalia’s originalism like a dog ripping up a newspaper, with equal reliance on truth and argument and to equally enlightening effect.

Scalia's Judicial Scam--Overview

The “simplistic pseudo-principle” Rosenberg denounces is, of course, the idea that judges should base their rulings concerning constitutionality on what the US constitution actually says.

Rehnquist reputedly said somewhere that Brown was wrongly decided, and as I understand it that is a correct conservative view.

I don’t recall whether Scalia has said anything about Brown.

In any case, this is not just one race-baiting liberal lie but several, rolled into a few sentences of pseudo-academic, pseudo-intellectual bullshit.

There can be no doubt that a major impetus for the modern conservative judicial movement is a white supremacist reaction to Brown v. Board of Education.

Rehnquist argued against it—and lied about doing so —and the lines of reaction only multiple [sic] from there on.

 Ideological practices such as “strict construction”, “originalism” and the like can only be understood historically as hegemonic devices intended to promote pseudo-objective foundations for turning back the egalitarian tide that threatens to sweep away white supremacy once and for all.

His approving quote from Lemieux is very interesting.

This is the passage as he quotes it, with my comments interspersed.

Scalia’s claim that originalism can “depoliticize” constitutional discourse is incorrect for three major reasons.

The first is that, as Richard Posner (and countless others) have noted, the choice to use originalism is itself a political choice.

The choice to “use originalism” – that is, to adhere to and enforce the actual law so far as one can – is indeed a political choice, not only when made by a justice on the Supreme Court but when made by any judge, or prosecutor, or policeman, or (come to that) President of the United States.

A surprisingly popular alternative is the choice to lie, sometimes extravagantly and with enormous social and legislative impact, about the constitution to serve one’s own ideological agenda.

Not all political choices are equal, you see.

The text of the Constitution does not require that it be interpreted by the use of any particular method.

Nor, indeed, does a text in chemistry, physics, mathematics, or history.

All the same, originalism is probably wise.

It is not, of course, surprising, that “originalism” is preferred by conservatives, as by definition it will tend to produce more reactionary outcomes over the long run.

More reactionary outcomes than lying to serve a left wing agenda by pretending the Constitution embodies the values of the most extreme variants of 21^st Century liberalism?

No doubt.

But this is not true by definition.

It is only true if departures from honesty about the constitution are generally made by liberal liars rather than others.

This is fine, and it’s perfectly appropriate for conservative presidents to take these consequences into account, but the use of “originalism” is in no way somehow innocent of politics.

Does he mean to suggest it is appropriate for liberal presidents to intentionally appoint liars to the federal bench?

Yes, I think he does.

Rosenberg later quotes Lemieux remarking that originalism does not determine unique outcomes, as of course it does not.

But it effectively rules out the wild flights of fiction one finds crucial to liberal decisions, as both R and L agree.

Indeed, is that not their complaint?

Update.

Just to be clear, I agree Scalia has been less than frank in his work.

In one of his books he firmly adheres to interpretations of "due process" and "equal protection" that make hash out of incorporation, but in Heller and later decisions he accepted incorporation to impose the 2nd Amendment on the states without shifting the burden, as Thomas did, to the privileges or immunities clause of the 14th Amendment.

The Air Force is unconstitutional

The army and navy are each separately authorized in Article I, Section 8.

Nothing there, or anywhere, about an air force.

And what about those state national guards, eh?

The constitution says the states can keep militia.

You think the NGs are a militia?

Pshaw.

The states are denied the power to keep troops or ships of war in time of peace.

You deny the NG's are troops?

But apparently the states can have their own air forces, since any power not denied them or attributed to the general government in the constitution is legitimately theirs.

Oh, all right.

The 10th is not strictly relevant, the power in question not being undividable.

But they can have their own air forces, all the same.

If you're going to be a textualist you have to stick to the text.

Let me know when Scalia demands the US Air Force be disbanded.

Scalia makes a valid point and Jen Sorensen doesn’t.

Mockery of justice

If justice means conformity to the constitution and honest interpretation thereof it is she who makes the mockery.

Scalia is on the money.

But if she refers to natural justice, moral justice, or divine justice, well, there are no such things.

Though in any case Scalia is right that the Supremes are not required to decide such matters, partisan folderol notwithstanding.

The incomplete constitution

Who has the power, under the constitution, to abrogate treaties?

To fire ambassadors and the other federal officials named by the president?

Do they hold office for life?

Is that why it is customary - though certainly not constitutionally required - for them all to resign when the term of the president who appointed them expires?

Are these powers reserved, under the 10^th Amendment, to the states?

Questions for sticklers for the text like Scalia.

The old faker.

J

Textualism

A Matter of Interpretation: Federal Courts and the Law

Scalia’s basic maxim is reasonable enough: the law is what the text actually says.

But the application to the constitutional law is of course the main point of interest.

And so, roughly, his view is this.

What the constitution forbids is what the text forbids.

What it requires or grants is what the text requires or grants.

Due allowance made for use of technical language or for changes in the meanings of words or expressions with the passage of time, of course.

But on the whole, adherence to the constitution is adherence to the text of a written and duly ratified document, authoritatively enjoined upon us by an authoritative process.

And that, he says, explains what judges are required to do when called upon to decide the constitutionality of a law or other act of government.

They are to strike down what does not comport with the text of the constitution and uphold what does so comport, he says.

And a very reasonable view that would seem to be, for an honest world of honest judges, politicians, and citizens.

But all three of those classes are such inveterate liars, frauds, and mountebanks that no child should be permitted to know anything of politics, law, or history until reaching the age of, say, forty-five.

And perhaps that is still too young.

Anyway, Scalia argues that this is what judges ought to do by appeal to the idea of democratic legitimacy.

Judges who do otherwise than adhere to the text of the law are making law, or anyway flouting it, he says.

And that it is not their proper role in a democracy.

But, unfortunately for his position, he also spends a few lines of this short book quickly demolishing the idea that law in all its detail can ordinarily be thought to express the will even of the legislators who voted for it, or the president who signed rather than vetoed it, or the portion of the public that voted for those particular officials.

And was not the constitution a small but rich package very busily containing detailed and critical individual provisions as presented to those who ratified it?

Were they not forced, as the US president regularly is, each to a simple up or down choice, take it all or leave it all, in every last detail just as it was?

And in the case of all but the most recent amendments to the thing are not the authors and ratifiers of the US constitution in any event all dead?

Meaning that those of us who are alive were not even presented with that choice to take it or leave it?

And is it not true that Article V allows only for piecemeal, minute amendment of the constitution while there is no provision at all for wholesale replacement of it?

And that the specified amendment process is cumbrous, exacting, slow, and remarkably – and intentionally – undemocratic, requiring extensive cooperation of elites across many states and much time?

And is it not also true that, though the men of Philadelphia ignored Article XIII of the then US constitution and illegally invented not only its replacement but also the process by which it would be ratified, we cannot presume Scalia would condone, let alone urge, any such thing today on any excuse whatsoever?

No to mention that such a revolt of the elites is hardly the sort of thing the people could ever be expected to arrange.

How ridiculous, then, is the claim that the text of the constitution as it stands represents the sovereign will of the people!

Everyone not a child knows what poppycock that is, and how utterly out of reach of the people, individually and collectively, is even ordinary law, let alone the constitution.

I am not saying Scalia is wrong to protest when judges and indeed the entire classe politique and even the citizenry as a whole egregiously and with unrelieved hypocrisy refuse both honest, conscientious adherence to the text and the responsibility to change it where it does not express their will.

But they have their reasons.

And loyalty to the text out of loyalty to a democratic legitimacy that it does not possess is just silly.

Besides, should we expect a man to be honest when he has fallen among thieves, murderers, and cutthroats?

Pshaw.

But then, the man himself is a hypocrite.

Scalia’s ruling made a reasonable degree of sense in Heller.

It is at any rate not manifestly silly to think of the DC government as a mere babysitter for congress and to think the congressional power to govern DC (Article I, Section 8 of the US constitution) is subject to the strictures of the Bill of Rights.

District of Columbia v. Heller

But then came the question of incorporation of the 2^nd Amendment.

An interesting take on D.C. v. Heller Incorporation

Tom King wrote in 2009 that some people were hot to incorporate Heller into the privileges or immunities clause of the 14^th Amendment in order to facilitate future imposition of everything in the constitution that could be viewed as granting or defending peoples' rights onto the states.

But the aim is foolish and the means are a lie.

Slaughter-House was right and that is just not what the privileges or immunities clause means.

Section 1 of the 14^th Amendment.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

To get the point, see the privileges and immunities clause of Article IV of the US constitution.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

And then its ancestor in Article IV of the Articles of Confederation.

The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the united States, or either of them.

The point of the earlier two is to prohibit any state A from denying to citizens of any other state B (or a subset of the “free inhabitants” of B) the privileges and immunities afforded by A to its own citizens (or “free citizens”), whatever exactly they may be.

And the point of the clause of the 14^th Amendment is to prevent any state A denying to any class of citizens of the United States the privileges or immunities of any other citizens of the United States - though what exactly that would come to is even more obscure.

In any event, each clause forbids the states treating certain specified groups of people as second class citizens in some manner or other in comparison to others.

And that is all that these clauses can honestly be claimed to do.

And in particular this clause of the 14^th does not bind the states to observance of any part of the Bill of Rights or of any other restraints imposed by the constitution on the federal government.

It just flat does not say that or anything remotely like that, and I do not believe for a moment it has more than rarely, if ever, been sincerely misunderstood to mean that.

And nothing in American history or our specifically political history justifies the notion that the authors or ratifiers of the 14th intended or accomplished that particular revolution regarding the constitution, the power of the states within their own borders, or the relation between the federal and state governments.

But the Supremes did go on to incorporate the 2^nd Amendment in a followup to Heller, all the same, though only Clarence Thomas bought the privileges and immunities line, supported in an Amicus brief by CATO.

The Second Amendment, Incorporated

Scalia and the others of the majority went for the conventional eyewash about due process, though early in his book he says due process guarantees nothing but that life, liberty, and property shall not be taken otherwise than in accordance with law.

Scalia, who in this book denigrates the very idea of incorporation as balderdash.

McDonald v. Chicago

Scalia, the noble textualist, abandoned principle in service to the conservative, Republican political agenda and to service of its constituency.

Well, what a shock.

Update 04052013 at 0742 hrs EDT.

All right, Scalia's arguments that the details of law do not represent the intention of those who passed it or signed it or whatever do not undermine it's democratic authority.

It is perfectly possible for an authority to command compliance with whatever a given person or a given text commands, though the authority does not know all or even any of what that person or text will or does command.

And in such a case it is the clear intention of the authority that you obey that makes those unknown commands themselves binding.

And though the original authority had no intentions that could throw light on the meaning of the commands of the secondary authority, those of the secondary authority can very well do so.

And so on the authority of the constitution one accepts the authority of the legislature to make law.

And on the authority of the legislature one accepts the authority of . . . .

Ooops.

The constitution has authority to delegate authority to the congress.

But the congress has no authority to delegate its own authority to others.

Is it even constitutional for congress to pass into law whole monstrous volumes the contents of which are wholly, or nearly wholly, unknown to it except in the most general of terms?

Doesn't look it.

Invisible ink embedded in the legislative power?

Redistricting isn’t disenfranchisement

Megyn Kelly Still Outraged For Defenseless ‘Sitting Duck’ Antonin Scalia, Not For Racially Entitled Voters

An interesting and revealing thought.

And that might be what Shelby County would do, given the shot.

Writes Tommy Christopher,

Scalia’s meaning is comically clear, especially when you read it in context: Congress is too afraid of the blacks and their race-traitor brethren to do the right thing, and let Shelby County suppress black votes through redistricting.

Obviously, the aim in that case would be exactly what it was with the redistricting elsewhere after the census of 2010, to minimize the electoral impact of Democratic votes just as far as possible through judicious gerrymandering.

The point is not racist but merely partisan.

But of course the Democrats never admitted that and have bellowed about racism in response to every move the Republicans have made for the last couple of years to cut or keep down the Democratic vote from voter ID to redistricting to refusing an express path to citizenship for the millions of illegals courted sedulously by the Democrats.

And they are really shouting about this one.

Well, it’s kind of a win-win, for them.

If the bullying succeeds and they get their way that’s a big win.

If it doesn’t they have even further seared shame into the minds of American whites and hate into those of American blacks.

Not coincidentally enhancing the loyalty of non-whites to the Democratic Party.

Oh.

Once again for the record, redistricting in no way attacks, diminishes, or denies anyone’s voting rights.

Irritating though it is.

White and unashamed?

Did Scalia Really Say That He Was 'White and Proud?'

Actually, he didn’t, of course.

But South Carolina Rep. Jim Clyburn, justly proud veteran of the civil rights struggle, made it all clear for us.

The Seattle Post Intelligencer quotes him responding to Scalia’s “racial entitlement” remark with a lovely bit of race-baiting, thus.

"I'm not easily surprised by anything, but that took me to a place I haven't been in a long time," Clyburn said of Scalia's words from the bench. 

"What Justice Scalia said, to me, was ‘The 15th Amendment of the Constitution ain't got no concerns for me because I'm white and proud.'"

Scalia neither said that nor anything like it.

But Clyburn was trying to put the most evil racist spin that he could manage on what Scalia actually did say, for this interview.

That's pretty much his most important job, these days, for the Democratic Party, after all.

Attacking the Republican Party, white people in general, and white conservatives in particular for racism, that is.

And so he put the most evil, racist words in Scalia's mouth that he could think of.

And what came to him was to attribute to Scalia an assertion of pride in his race.

That assertion was the most evil, racist thing he could think of to put in Scalia's mouth.

In case you missed it, the liberal cultural mandate is that white people need to be profoundly, permanently, and unequivocally ashamed to be white.

Actually, that's pretty much the UN, indigenista mandate.

And that is exactly how very many, if not most, if not all of America's black people feel.

If you openly are not ashamed to be white then you are a racist and they wish upon you the worst they can, short of actually hiring a hit man.

As for Scalia, the remarks put into his mouth are not even remotely close to what he actually said, and the attack neither shows he was wrong about the congressional motivation for renewal of the Voting Rights Act nor that Section 5 allowing for federal interference in state control of voting is really still needed.

That, of course, is the legal question before the court.

Scalia’s scornful though accurate remarks were irrelevant.

As have been the relentless and vicious attacks on him, ostensibly in defense of Section 5 though often without even a mention of it.

Scalia reminds Clyburn of [Strom] Thurmond.

The hell, you say, you old fraud.

The article also says,

Clyburn is also chilled by a bevy of state voting laws - in South Carolina, among other states - designed to make it more difficult to vote, and directed at voting habits (e.g. voting on Sundays) favored by African-American citizens.

Do African-Americans habitually vote when the polls are closed?

Nobody in America votes on Sundays.

I would much rather we did, though.

The quote from Clyburn continues.

"When you have in 2012 ... states making changes to their laws that you can look on their face and see that these changes will make it harder for minorities to have their votes affect the results that they intend, you say that we don't need (the Voting Rights Act) anymore? Is this some kind of entitlement?" he asked.

I am not certain but I suppose he here irrelevantly refers to the plethora of voter-id laws, perfectly sensible in themselves and not especially burdensome, but expected by all parties (hence the fight) to stave off more Democratic than Republican votes.

But for Democrats everything is about race and they are always on the right side and it's always whites whom they fault.

Recall anything Al Sharpton ever said about white people in his entire adult life, including his career on MSNBC as a voice of the Democrats and liberals, where this deep-dyed and forever unrepentant hater of white people replaced Pat Buchanan, intentionally driven out by liberal allegations of racism.

Recall Rev. Wright, the president's mentor for two decades in Chicago, the Reverend's infamous sermon damning America to hell, and his friendship with Louis Farrakhan.

Recall the Gates affair.

Recall the president’s and the AG’s responses to the Martin-Zimmerman affair.

And recall the liberal/Democratic positioning and handling of all of these things.

Not much from the Republican/conservative side on Scalia's remarks or the attacks on him for them.

Not yet, anyway.

Except from Limbaugh, I think.

By the way, it is only questionably appropriate for anyone to be ashamed of or proud of his race.

You are not to blame for everything ever done by anyone of your race, nor do you deserve credit for anything ever done by anyone of your race.

But it's sort of like being proud or ashamed of your family.

I suppose it really can't be helped.

But all the same when others try to make you ashamed of what your horse-thief of an uncle did for a living it is they who should be ashamed.

Racial attack-ninja goes at Scalia, again

Voting is no ‘racial entitlement,’ Justice Scalia

Nor, of course, did he say it was.

Nor did he say anything inconsistent with the truth of her brief history lesson.

What he said was about the politics of renewal of Section 5, and what he said was true.

Irrelevant to the question whether intervention under Section 5 continues necessary, but true.

Anyway, attacks of this kind have been going on for days, I guess in preparation for an expected adverse ruling on Section 5 later this year.

Do they think he is the judge most likely to be shouted into changing his vote?

Do they think he is the judge most likely to resign out of stress-fatigue from being beat up this way?

Do they think they can set him up for impeachment?

Or is this just more of the usual identity politics hoopla wherein Democrats flood the world with accusations of Republican racism to enhance the loyalty of their black and other non-white constituencies?

In any case, I have seen nothing said by anyone making these attacks that lends support to the claim that Section 5 intervention is still needed.

Or anything that supports the claim that the court owes deference to the Congress on this matter.

Much less have they said anything to show that what Scalia irrelevantly said is untrue.

There is nothing to all these attacks but the politics of personal destruction, as Bill Clinton called it at one time or another.

And to think I used to like this woman.

Not so much, any more.

No, I wouldn’t say so.

Preparing for armed rebellion

The post-Newtown debate on the right.

Republicans in need of sensible gun laws

Brett Joshpe is wrong that the 2^nd Amendment guarantees an individual right only to have a weapon in one’s home and only “for limited purposes including self-defense.”

Regulating the Militia

Williamson is right about the sorts of weapons covered and the political and military purposes envisioned in the amendment, itself, although he overstates the domestic side of the thing.

With amusement I note that, writing in a magazine devoted to neocon propaganda, this fan of the 2^nd quotes Story with approval on these matters though Story’s argument relies heavily on the notion that standing armies cannot be trusted by a free people and are wholly unacceptable.

Too, he ignores the prompt refutation of Story’s and his own viewpoint, and indeed the very purpose of the 2^nd, by the outcome of the Whiskey Rebellion (utter defeat for armed civilians resisting “government tyranny”) and the whole course of the War of 1812 (the Brits spent the war spreading havoc in the US that our forces, militia and regulars combined, could not prevent).

As does the entire tribe of conservative blowhards bragging inanely that they and their little crackpot militias are all that stands between us and those would be tyrants, the commie liberals in Washington.

The likelihood of armed rebellion even making the least sense in the US is vanishingly small, and the likelihood it would in such a case do the least good is null.

The 2^nd was a stupid mistake from the beginning and has been nothing but a source of trouble for a very long time.

Indeed, all the more so since the Supremes got a bit more honest about its meaning (individual right, but not to much) while remaining dishonest enough to apply it to the states and their subordinate jurisdictions (incorporation).

Still, Williamson was right about this.

“Brett may think that such a notion [as the political and military purpose of the amendment] is an antiquated relic of the 18th century, but then he should be arguing for wholesale repeal of the Second Amendment rather than presenting — what’s the word? — disingenuous arguments about what it means and the purpose behind it.”

On the other hand, why bother when Scalia has already effectively denied its political and military purposes, anyway?

Now if we could just get the courts to back away from incorporation of the 2^nd into the due process guarantee of the 14^th, things would be a lot better.

Not great.

But a lot better.

Reinterpreting the Second Amendment

Joshpe relies on Scalia to vindicate a much-diminished view of the right created by the 2^nd.

He is mistaken, as was Scalia, I think.