Wednesday, February 01, 2017



UPDATE: Today, Sean Spicer provided a list of the groups that were represented in that meeting with the president. It's quite a rogues' galley:

Karoli Kuns at Crooks & Liars explains who these folks are. They're not our friends.


Philo Vaihinger said...

Scalia, in defiance of his own earlier and popular writings, embraced the (old style, via due process) dogma of incorporation in order to impose the 2nd Amendment on states and locales.

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.

(I don't recall any similar defection concerning a conservative reading of the equal protection clause.)

Nobody has yet said anything about Gorsuch's detailed legal views.

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

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 established conservative readings of the general welfare and necessary and proper clauses, which flatly rule them both out.

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

And also how far he is in sympathy with conservatives' renewed interest in and respect for Lochner, which 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.

And they forget or ignore how far the constitution as written, as intended, and even as amended is a very, very conservative document.

Nearly every past, present, and future achievement of progressivism in government relies crucially either on seeing the constitution as a "living document" and the Supremes as a "constitutional convention in permanent session" or on seeing constitutional obedience as in many important ways quite optional and not advisable.

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 stray both deliberately and far from enforcement of that document as actually written or originally meant.

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

Jimbo said...

Since the original Constitution was a compromise to keep the slave states in the Union, it has also meant that major changes to the document, e.g. voting rights and procedures, personal and economic rights, etc. can never be formalized as Constitutional amendments but as broad interpretations of the the Equal Protection clause or the Interstate Commerce clause and so can be vulnerable to an extremist SCOTUS majority.

Philo Vaihinger said...

I should qualify what I wrote earlier with this.

Strict construction, textualism, and originalism are each a bit of a fraud, anyway, and as written isn't always the same thing as as meant.

I am not aware of anyone, for example, who holds that the free exercise clause protects human sacrifice, and pretty much everyone seems agreed it disallows, in some cases (e.g., Quakers refusing to perform military service) though not in all (e.g., parental refusal to provide medical care to their sick children), requiring people to do what their religion forbids.

Gorsuch 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.

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.

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.

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

And there is much, much else, besides.

Philo Vaihinger said...

@Jimbo, I think you refer to Article V which, all by itself, hands a veto on constitutional change to a relatively tiny minority living in conservative, more than typically white states.