Aerothorn on 16/10/2009 at 18:41
Was not aware of that - thanks for the info. But it was my understanding that, for instance, news stations in the USA are allowed to say knowing untruths (that's the lesson I got from the Fox News whistleblower case). Is this not because the first amendment protects this, but simply because there is no law banning it?
The unfortunate thing is that the First Amendment *itself* is crystal clear. The problem (as I understand it) is that it's essentially absolutist, and absolutist demands like that are impractical and will inevitably be undermined.
I asked my Media Law and Ethics professor about this, and he thought it sounded pretty fishy from a first amendment perspective, but it's worth noting that, while he is pretty knowledgable about US law, he is a UK journalist and UK law is his speciality.
Rug Burn Junky on 16/10/2009 at 19:01
It is fishy, but it's justifiable.
And yeah, the first amendment is absolute on its face, but it's not as big of a problem when fit into the larger picture of precedent and judicial review. That's why there's so much more to legal interpretation. The plain text holds a lot of water, especially since it's the constitution, but as you note even a law that's clear on its face can lead to inappropriate consequences, which is why there are exceptions that are deduced as logical consequences based on the intent of the law itself. This kind of meta analysis is necessary in any legal system - those drafting the rules can not account for all future scenarios - and is poorly understood by most non-legal types who attempt to push for textualism.
Rug Burn Junky on 16/10/2009 at 19:21
Quote Posted by CCCToad
I could be wrong on this
Have you not learned your lessons?
Rug Burn Junky on 16/10/2009 at 19:38
Fair enough, I'll humor you: Your premise is true, but it is not an accurate basis for your conclusion.
Aerothorn on 16/10/2009 at 21:05
Okay, so Scalia and Thomas say they are "originalists," though in my experience their decisions don't always line up with this. I understood originialism to be akin to textualism - what is the difference?
P.S. Thank you for the education!
Rug Burn Junky on 16/10/2009 at 22:01
I would need to write a book to get all of the intricacies. I can't really encompass it all without dumbing it down.
Simplified: Originalism is about sticking to the founders' "Original intent" or "Original meaning."
Textualism means that you look only to the text, and don't use outside sources to infer meaning. It is usually a subset of originalism, but relying only on the expression of intent as found in the text.
Strict constructionism is textualism taken to its ludicrous extreme - it is essentially being a Desmond about the law. Even Scalia thinks this goes too far.
Originalism, at its heart, is really what every judge strives for (even if they won't use that word), but those who adopt a view of the "living constitution" recognize the limitations of the original intent, and extrapolate the principles therefrom.
Even Scalia and Thomas are willing to deviate from the logical conclusions of originalism/textualism when they recognize that it leads to a ludicrous result. The only difference is that because they have such high standards for when to deviate, they have convinced themselves that they have a hard and fast rule and that the exceptions do not violate their stated principles. They criticize the living constitution view as being fundamentally different in quality, when really, it's only a matter of the degree to which they recognize exceptions. It's not entirely hypocrisy, but it is a blindspot. The overt criticism of the living constitution is that it leads to "judicial activism" when, really, either interpretive philosophy can be used to effectuate law in that fashion - only originalism pretends otherwise.
That said, the tension between the two sides keeps it in check. Scalia is a necessary voice to restrain judicial overreach, but a court overrun with originalists would be dangerous to judicial power in that it would defer to readily to legislative overreach.
Starrfall on 17/10/2009 at 02:27
Plus if you take all of the words in Article III that start with "p" and then take the second letter and arrange them in reverse order of appearance it says "At least one jerkass shall sit on the Supreme Court bench at all times."
Aerothorn on 17/10/2009 at 16:30
Only one?
Regardless of what I think (in my ill-educated manner) of some of Scalia's politics, he frequently has pretty funny things to say in court. Though he got a little *too* eager in the recent "animal cruelty videos" case.
Also, was reading the Lawrence v. Texas dissent recently, and this sentence confuses the hell out of me (it's like, a quadruple negative or something):
"I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct."
Starrfall on 17/10/2009 at 18:18
At LEAST one.
That sentence is NOTHING compared to some of the godawful shit you have to plow through in some of the older cases. God DAMN they loved commas in the 1800s.
edit: but at least now I'm getting paid to read them :D
Aerothorn on 17/10/2009 at 21:17
whereas I have to PAY to read them. stupid private higher education
