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View Diary: Black Kos, Week In Review (90 comments)

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  •  My thoughts on Scalia "flipping" (10+ / 0-)

    Scalia (and Thomas) both site and read legal and historical text from the 1700's to find out what people of the framers time thought was "cruel and unusual" or "well regulated militia" . Shouldn't they be considering what the authors of the amendment thought was appropriate when they wrote "Congress shall have power to enforce this article by appropriate legislation"?  

    So the law was constitutional in 1965 (and worthy of kudos from bench from Scalia) but is not constitutional now? I thought the constitution was dead in Scalia's eyes and doesn't change to reflect modern changes in society. But then again since the vast majority of the writers and ratifiers of the 24th Amendment voted for the voting rights law, it would beg a question Scalia doesn't want asked or answered.

    The amendment "striking down poll taxes" was implicitly directed at the South and its signers also voted for the VRA. Because the VRA also covers infringements on voting that may constitute taxes (paying the government a fee to obtain an ID for example), and literacy test. There are 7 "voting rights amendments" that give congress the ability to enforce them legislatively: 13th, 14th, 15th, 19th, 24th, 26th. If you want to consider what the authors of the 13th,14th, and 15th amendment thought was "appropriate" in regards to Congressional legislation directed to the South, we can have that conversation too.

    You can consider the Constitution a living document and use modern definitions of "well regulated", "cruel and unusual", and "appropriate legislation", or you can consider it dead and use what these terms meant at the time of their drafting. But what you can't do without being a "quack" is do both! Being a strict constructionist texturalist when you feel like it, and a living documentarian when you want a different outcome, makes you a quack of the first rank!

    I wish the liberal justices would use a variation of this argument against Scalie when he does it. Scalia loves to "call out" liberal justices, they should return the favor in full force.

    -1.63/ -1.49 "Speaking truth to power" (with snark of course)!

    by dopper0189 on Fri Mar 01, 2013 at 01:52:21 PM PST

    [ Parent ]

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