Antonin Scalia: RIP

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Craig Fry

Trad climber
So Cal.
Feb 16, 2016 - 03:14pm PT
Check out what was said about Ted Kennedy before you go calling us Libs ugly for our name calling
or Whitney Houston, or many other main stream figures that have died recently

The Conservatives are the champions of the smear and hate campaigns

Not one ugly thing was said about Scalia, other than we hated him and he was a lousy judge

Are all conservatives total hypocrites?
Most are

They just can't stop themselves from smearing the enemy, and defending the losers that are on their side.
10b4me

Mountain climber
Retired
Feb 16, 2016 - 03:22pm PT
I haven't actually looked at Scalia's dissent in Lawrence v. Texas, the SCOTUS case finding a constitutional right to sodomy.)

how could the court have ruled differently? It would have violated one's right to life, liberty, and the pursuit of happiness.
August West

Trad climber
Where the wind blows strange
Feb 16, 2016 - 04:26pm PT
I think it's safe to say that from a Scalia point of view, there should be no right to sodomy under the Constitution because in fact sodomy was punishable by death at the time that Constitution (and any relevant amendments) were enacted.

So where in the Constitution does it say that corporations should be protected by the Bill of Rights like free speech. Certainly not at the time of the Constitution but Scalia didn't have a problem with that one (among many others).

And who at the time of the Constitution had a notion that money equals free speech. But that is what Citizens' United and other cases have held and Scalia joined.

But I suspect that if I wanted to give money to IS, Scalia would think it would be constitutionally ok to prosecute me for supporting terrorism even all I was doing was exercising free speech by giving to an organization whose politics I supported.

Claiming this is original text is just plain BS to hide his politics.
zBrown

Ice climber
Feb 16, 2016 - 06:50pm PT
The Part that was Left Out of The Scalia Book? Did anyone check Scalia's anus for semen?

Sierra Ledge Rat

Mountain climber
Old and Broken Down in Appalachia
Feb 17, 2016 - 06:47am PT
I have been gleefully awaiting the day when worms will be feeding on Scalia's corpse
Tom

Big Wall climber
San Luis Obispo CA
Feb 17, 2016 - 07:17am PT

Scalia fed a worm, so they must confirm
Craig Fry

Trad climber
So Cal.
Feb 17, 2016 - 10:57am PT
So Scalia was using his stature as a SCOTUS to get free trips to a hunting resort.
Would he have filed the trip on his disclosure forms?
That's a negative.

Who paid for the flight? the food?
And who accompanied him of the trip?, who else was at the resort?
No one will say.

It's all very mysterious how these SCOTUS can get away with everything, they are above the LAW (in their mind at least)

Doctors say he shouldn't have been traveling with his bad heart.



Why Justice Scalia was staying for free at a Texas resort

https://www.washingtonpost.com/news/post-nation/wp/2016/02/17/justice-scalias-death-and-questions-about-who-pays-for-supreme-court-justices-to-visit-remote-resorts/?hpid=hp_hp-top-table-main_scalia-resort-925am%3Ahomepage%2Fstory
JEleazarian

Trad climber
Fresno CA
Feb 17, 2016 - 11:09am PT
So where in the Constitution does it say that corporations should be protected by the Bill of Rights like free speech.

You've asked a variant of that question often enough for an answer, August. The First Amendment reads:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. "

Where does it say "unless the abridgement is to the right of a corporation? And where does it say "unless one pays to have the speech spread?"

For that matter, how would you distinguish New York Times Co. v. Sullivan, 376 U.S. 254 (1964), from the dissent's contention that corporations have no First Amendment rights? Or is it just no freedom of speech, but they have freedom of the press?

The arguments against the majority opinion in Citizens United represent either a willful intellectual inconsistency or a willful belief that freedom of speech only applies to speech the government likes. Neither view supports the freedom the founders sought.

John
Craig Fry

Trad climber
So Cal.
Feb 17, 2016 - 11:12am PT
It's not a free speech issue
It's a corruption of our Democracy issue

You can't have the Nazis, China or ISIS funding a candidate can you?
No, especially if they are undisclosed funds, which is legal now with the current laws.

That's were you conservatives get it wrong
climbski2

Mountain climber
Anchorage AK, Reno NV
Feb 17, 2016 - 11:17am PT
J.E. The constitution is a not a suicide pact. No right is absolute. Even the majority opinion in Citizens United recognized that there could be cause to regulate corporate donations or "free speech" if they were found a threat to the the election system.

They just simply and naively seemed to think such a threat did not currently exist.
JEleazarian

Trad climber
Fresno CA
Feb 17, 2016 - 11:23am PT
You can't have the Nazis, China or ISIS funding a candidate can you?
No, especially if they are undisclosed funds, which is legal now with the current laws.

The disclosure prohibition came about under the Warren Court - that famous conservative engine - in NAACP v. Alabama ex. Rel. Patterson, 357 U.S. 449 (1958).

The "protection of democracy" argument fails because of the nature of McCain-Feingold. That law restricted purchases of political advertising, but did not include the broadcast or publishing of political advocacy by media corporations. What disclosure requirements apply to a newspaper? Why does it threaten democracy to let a corporation rent a media outlet to send a political message (i.e. buy an ad), but it's no threat to let a corporation own a media outlet and send any political message it wants at any time?

More importantly, though, the First Amendment instructs us that in cases of doubt, we resolve that doubt in favor of allowing, not restricting, speech. The underlying philosphy is "the cure for bad speech is more speech." The danger of governmental control over political speech is too great. One need look no farther than Venezuela, Cuba or North Korea to see that the government will, if allowed, regulate speech in a fashion designed to keep incumbants in power. The founders rightly saw that threat as fundamental to the existence of a free society.

John
climbski2

Mountain climber
Anchorage AK, Reno NV
Feb 17, 2016 - 11:31am PT
I do not equate giving money to candidates as "free speech" It does threaten democracy clearly. It is too easily perceived by the receiver as a form of pay requiring direct service in return. Infact it is almost impossible for a human being with normal human psychology to either give or receive money directly without expecting something in return or expecting to have to perform some service. On top of that it is a threat to our government simply because we now have representatives spending half their working time on the phone or speech circuit begging for money instead of doing their job.

This is so basically true it is hard to refute.

It seems clear enough to me that all donations must go to a pool to be evenly distributed among all candidates.

Yes there are issues with media ownership and purchasing of direct advertising.. but I would agree your arguments seem to hold pretty solid sway in those areas.
the Fet

climber
Tu-Tok-A-Nu-La
Feb 17, 2016 - 11:38am PT
And where in the Constitution does it say speech equals monetary contributions to politicians?

It's ridiculous to say everything is perfectly spelled out in the constitution or any laws for that matter. They are written with words and words must be interpreted for meaning. What is speech, what are it's limits, what isn't speech. That's not all documented in the constitution.

You can't just ignore the spirit of the law, but there certainly is a LOT of leeway. A SCOTUS justice (any honest one) is going to make a decision based on the wording of the law, but also take into account the spirit of the law, their background, case law, the most pragmatic interpretation of the law, how it fits in with other laws, etc., etc. Sure folks like Scalia say they are going by the letter of the law and the framers intent. People talk about Scalia being some great legal mind but if he can't even admit that he is interpreting the law based on his own background he was either dishonest or self deluded.

It's also ridiculous to say we just need to follow the framers of the constitutions intent. There were multiple people involved and they had differences and different opinions. Part of their genius was that they recognized this and put systems in place to compromise and have check and balances. Otherwise we could just have 1 SCOTUS justice. We have 9 so they vote and their vote is a form of direct and indirect democracy. Again it's ridiculous to say the Constitution can only be interpreted one way.

It would also be interesting to see how many times (if any) Scalia decided to vote against his viewpoints because the law was written that way. My guess is rarely and never on anything truly important.

In fact Roberts and Kennedy are the ones on the court who have shown true deference to the wording of the law likely superseding their personal beliefs. For that they should be commended, but folks like blahblah call that flip flopping or weakness. Welcome to bizarro world where strength and intellectual honesty is weakness.
apogee

climber
Technically expert, safe belayer, can lead if easy
Feb 17, 2016 - 12:12pm PT
"It's not a free speech issue
It's a corruption of our Democracy issue"


This.
JEleazarian

Trad climber
Fresno CA
Feb 17, 2016 - 12:22pm PT
And where in the Constitution does it say speech equals monetary contributions to politicians?

This question makes me ask to which Citizens United decision do you refer? The one the SCOTUS decided involved a non-profit corporation seeking to air an advertisement critical of Hillary Clinton within a few weeks of a primary election. Laws that prevent corporations' donations to candidates for political office remain in place.

Instead the Citizens United case struck down the prohibition on spending money to purchase political ads "too close" to an election. The prohibition was clearly not a "reasonable time, place or manner" prohibition because it specified political content.

The only reasonable argument I can see in favor of the dissent is the one articulated by climbski2, namely that the speech needing regulation forms a "clear and present danger," being in the nature of "fighting words" or shouting "fire" in a crowded theatre. No prior case, however, ever held mere political content to constitute a clear and present danger, and for good reason.

The very nature of political speech involves a desire to affect political results. Holding that political speech ipso facto poses a clear and present danger would allow the government to stifle any speech that might harm the parties in power. Similarly, allowing the government to say that political speech made on behalf of a disfavored party poses such a danger holds the same risk.

I find it particularly rich that the parties that gripe the most about Citizens United allowing parties to purchase elections -- namely those on the left -- remain the ones who actually purchase votes by taking taxpayer money and giving it to enough people to keep them in power. I'm sorry, but the exaggeration and distortion that the opponents of that decision cry bears so little resemblance either to the facts of the case or the dangers to freedom that we should be frightened that it rests on only one SCOTUS seat.

John

Edit: Anders, the First Amendment does not include a limit on which parties enjoy freedom of speech. Placing such a limit would be, in itself, an addition to any possible original intent. The original intent doctrine comes into play when more than one possible interpretation of Consitutional language is possible. It is rather a form of legislative history. Scalia always first looked at the clear language. Only when the language was unclear did original intent, legislative history, or any other external interpretive aid become relevant.

The First Amendment's guarantee of freedom of speech had no limit to favored parties.

On a slightly different vein, I still await anyone's distinction between the majority opinion in Citizens United and that in New York Times Co. v. Sullivan.
August West

Trad climber
Where the wind blows strange
Feb 17, 2016 - 01:49pm PT
Ok. I agree these things are not perfectly spelled out in the constitution and you need judges that make interpretations. So far, so good. What I am ultimately attacking is Scalia's PR spin saying somehow he is just reading the text and is making decisions based on some original intent. That's BS. It is just his politics versus somebody else's. Yes, the liberal justices do the same thing. The hypocritical part is Scalia's claim that he wasn't doing the same thing.

If by original intent you mean the state of affairs that existed in 1788, then things break down quickly. Anyone in the original intent camp think the 2 amendment only applies to single-shot, smooth bore, muzzle loading muskets?

If by original intent, you mean what was the type of problem you were trying to solve. Then it makes sense to expand the 4 amendment's protection on search/seizure/warrants to telephones and emails. But if that is your interpretation, then things like cruel and unusual and equal protection of the laws have to based on modern viewpoints. In that case, striking down sodomy laws or approving gay marriage could legitimately be seen as dealing with the type of problems the Bill of Rights was designed to protect.
August West

Trad climber
Where the wind blows strange
Feb 17, 2016 - 01:56pm PT
JE the money equals speech predates Citizens United but I think it expanded it. By that I mean that the court has not just ruled, for instance, that you can post whatever you want on a blog. But the court has ruled that the actual act of donating money to some other organization gets 1 amendment rights. So if I recall correctly, Citizens United, among other things, struck down the part of the law that required donors to be publicly identified. So this is not strictly protecting the speech, per se. It is giving 1 amendments protection to the act of money changing hands. And no, it is not exactly the same thing as buying a TV ad. Presumably a given Super Pac will support a given candidate but the money can go to anything. Staff, parties, paying people to go to your rallies etc.
Ken M

Mountain climber
Los Angeles, Ca
Feb 17, 2016 - 03:21pm PT
When American colonists declared independence from England in 1776, they also freed themselves from control by English corporations that extracted their wealth and dominated trade. After fighting a revolution to end this exploitation, our country’s founders retained a healthy fear of corporate power and wisely limited corporations exclusively to a business role. Corporations were forbidden from attempting to influence elections, public policy, and other realms of civic society.
Initially, the privilege of incorporation was granted selectively to enable activities that benefited the public, such as construction of roads or canals. Enabling shareholders to profit was seen as a means to that end. The states also imposed conditions (some of which remain on the books, though unused) like these*:

Corporate charters (licenses to exist) were granted for a limited time and could be revoked promptly for violating laws.

Corporations could engage only in activities necessary to fulfill their chartered purpose.

Corporations could not own stock in other corporations nor own any property that was not essential to fulfilling their chartered purpose.

Corporations were often terminated if they exceeded their authority or caused public harm.

Owners and managers were responsible for criminal acts committed on the job.

Corporations could not make any political or charitable contributions nor spend money to influence law-making.
Ken M

Mountain climber
Los Angeles, Ca
Feb 17, 2016 - 03:24pm PT
One of the most severe blows to citizen authority arose out of the 1886 Supreme Court case of Santa Clara County v. Southern Pacific Railroad.

Though the court did not make a ruling on the question of “corporate personhood,” thanks to misleading notes of a clerk, the decision subsequently was used as precedent to hold that a corporation was a “natural person.” This story was detailed in “The Theft of Human Rights,” a chapter in Thom Hartmann’s recommended book Unequal Protection.

From that point on, the 14th Amendment, enacted to protect rights of freed slaves, was used routinely to grant corporations constitutional “personhood.” Justices have since struck down hundreds of local, state and federal laws enacted to protect people from corporate harm based on this illegitimate premise. Armed with these “rights,” corporations increased control over resources, jobs, commerce, politicians, even judges and the law.
Norton

Social climber
Feb 17, 2016 - 03:35pm PT
"natural person"

Well then, why can't a corporation be the Prrsident?
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