tag:blogger.com,1999:blog-6564473.post115845259192188850..comments2024-01-15T05:32:24.873-05:00Comments on The Jon Rowe Archives: Jonathan Rowehttp://www.blogger.com/profile/04079637406589278386noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-6564473.post-1158615454157388092006-09-18T17:37:00.000-04:002006-09-18T17:37:00.000-04:00Thanks.However, out of the two, I think Thomas is ...Thanks.<BR/><BR/>However, out of the two, I think Thomas is more likely to embrace the words "original intent." Scalia would argue that he is a strict "textualist," that i,s he is most concerned with what the text says only and is wary of the arguments which would say "but the Framers intended this" when such contradicts what the text of the Constitution (or a statute) says. <BR/><BR/>He likes to supplement the text with "traditions." Which is odd because the text of the Constitution says noting about supplementing vague parts of it with "tradition."Jonathan Rowehttps://www.blogger.com/profile/04079637406589278386noreply@blogger.comtag:blogger.com,1999:blog-6564473.post-1158544435007145712006-09-17T21:53:00.000-04:002006-09-17T21:53:00.000-04:00As a business person vis-a-vis an attorney, I rega...As a business person vis-a-vis an attorney, I regarded the U.C.C. as pro-business (which you underscore), but perhaps the "details" I consider generalities (given financial documentation) is probably more specific than a general legal attitude would allow. The U.C.C., as you observe, doesn't proscribe contrary contracts, it merely facilitates the "usual and ordinary course of business." The irony, recited in my case of the repossesed vehicle, is that the conditional sales contract was quite specific, and the court was no less equally negating.<BR/><BR/>But you cite an degamgoguing approach by the "rightist" judges on the court. I still have no idea of how Thomas comes to the conclusions he does, but I think I have an idea of how Scalia does. As we all know, he subscribes to "orginal intent," the doctrine that the meaning of the Constitution's words must be understood as the framers understood them. Aside from Scalia's telepathy in discerning those intents, and aside from the "intentional fallacy," his adoption of original intent is no less activist than any of his fellow justices. He simply believes that hoisting "orginal intent" obviates any due diligence, other than his reading of the writings and etymologies of the framers' linguistic style. Thomas, apparently, follows in some version of that shadow.<BR/><BR/>Contrary to deconstructionist, postmodernist, and other literary theories, language is usually stable enough to convey a basic meaning. When the Fourth Amendment proscribes unreasonable warrantless searches, even those of us with an ordinary use of English words and sentences in the 20th C. think we understand what that means. When the Constitution requires "equal protection," I think we know that "separate, but equal" is not equivalent. No one denies that the language evolves, and words used centuries ago may not mean the same today. Cranmer's use of "prevenient" in a collect of the Book of Commom Prayer, means, "to go before." Today, it means to prevent. Fortunately, the OED helps us over those obstacles.<BR/><BR/>But "unreasonable search and seizure" and "double jeopardy" have not changed that much in two centuries to allow Scalia's dissent in Hamdan. And how many McNichols' trials of terrorism must we endure (federal, state) before double jeopardy isn't a feature? As much as I lament the O. J. nullification, I lament even more the additional "opportunities" to try him in different courts on different counts that amount to the same thing. The entire RICO statutes are an assault on every notion of "innocent until proved guilty," which Scalia has found does not mean the same thing in different courts in different contexts to his "original intent." Sometimes, the words say what they mean, and mean what they say, and appealing to "original intent" is just another form of judicial activism however surreptitious. Scalia apparently thinks the Fourth Amendment means different things when he applies his "original intent." Like the municipal court judge who determined that "contract" is a bank contract to enslave a minority, from which the former slaves must be freed, she too had an "interpretation" that does not fit our ordinary use. It's all judicial activism. Just as GWB thinks "executive privilege" trumps separation of powers, he too has an activist interpretation.<BR/><BR/>The Founders, Scalia, and every other justice is skirmishing, making up the rules as they go along. But we need to realize that "in order to form a more perfect union" the silly equivalence of separate but equal does not mean equal protection, that unwarranted wiretaps is an unreasonable search and seizure, that no one person is above the law, not even court justices, and especially not presidents. The 200 years after founding counts for something, call it experience, that is a prism to determine whether the founders, we, or anyone has the right grasp of the concepts. All judicial decisions are activist, hopefully, in my view, they are liberal activism, in favor of the Enlightenment principles which the Founders did not fully articulate (e.g., equal protection, due process). The 18th C. experiment was noble, but deficient. As long as we know we still have a "better" union to form, then we might find better solutions. As long as we appeal to our worst instincts, we get "separate but equal" instead of "equal protection." In took the Supreme Court 75 years to discern it was terribly, terribly wrong. And the damage done in those and earlier years cannot be redeemed.<BR/><BR/>Hopefully, we are all liberal activists, pleading for individual liberty and rights, defending them against every assault, and yearning to form a more perfect union. "Original intent," like all activist theories, is just another petard to delay our full actuality. And the suffering, the injustice, and the immorality cannot be resolved by appeals to tradition, history, and original intent. For back then, slavery was the tradition, it was the history, and it was the intent. And it was sickening then as it is now.Anonymousnoreply@blogger.com