tag:blogger.com,1999:blog-7603499.post4141604548399767500..comments2023-11-30T03:44:34.585-05:00Comments on Opinions Nobody Asked For: More Scalia "Originalist" HackeryJeffhttp://www.blogger.com/profile/11683622475941901572noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-7603499.post-29750770538046578752010-09-26T21:57:45.132-04:002010-09-26T21:57:45.132-04:00Yeah, I guess my problem with rational basis is th...Yeah, I guess my problem with rational basis is that it seems too easy to beat. I mean, I was downright shocked when Prop 8 and DADT failed it, because I feel like any lawyer with the IQ of an iguana could defend 99% of laws that violate equal protection with a rational basis claim. Seems to me the default should be to strict scrutiny (or whatever the strictest standard is) unless certain other conditions apply, rather than the other way around.Jeffhttps://www.blogger.com/profile/11683622475941901572noreply@blogger.comtag:blogger.com,1999:blog-7603499.post-89196197091227327152010-09-26T18:54:08.505-04:002010-09-26T18:54:08.505-04:00Glad to see my old buddy Ian - who requires neithe...Glad to see my old buddy Ian - who requires neither food nor oxygen because he eats and breaths politics - is doing what he does best....and getting attention for it.<br /><br />The disagreement between you and Scalia here is the classic dispute between "Plain Meaning" and "Legislative Intent." When interpreting a law - be it legislation passed by Congress, a passage of the constitution, or simply a boring ol' federal regulation - do you start from the plain meaning of the text or do you try to capture what the creator of the law was trying to accomplish? There's case law all over the place on this, but when it comes to legislation and regulations, the general consensus is that judges should defer to the plain meaning of the text unless it is ambiguous. If there is ambiguity, only then do you look behind the text to try and discover the legislative intent. The reasoning behind this interpretive approach is that the law-makers chose certain words for a reason and those words are usually the best expression of their "intent." Attempts to discern "intent" have the danger of inserting the judge's own opinions and biases. Scalia - more than most judges - is skeptical of attempts to discern "legislative intent." Which makes it all the more ironic that he throws all that out the window with his "originalist" interpretation of the 14th Amendment.<br /><br />Now, about rational basis....in defense of that doctrine, the law makes distinctions all the time and clearly not all of them are banned by the 14th amendment. For instance - to take an obvious example, the law allows people who have been convicted of crimes to be put in jail and not people who have not been convicted of crimes. (Putting aside certain insane claims made by current and recent Presidents re: National Security.) Nobody thinks the 14th Amendment was meant to prohibit such distinctions. Another example, welfare payments only go to people below a certain income level. Does the 14th Amendment's guarantee of equal protection mean that I should get welfare payments too or else it's discrimination? So, the courts have looked at certain classifications (i.e. race and, despite what Scalia says, sex) and subjected laws making distinctions based on such classifications to strict scrutiny. Where there is strict scrutiny, the law is almost always overturned. But other distinctions don't merit such scrutiny and thus they get rational basis review. It's as reasonable a basis as any for interpreting the 14th Amendment in a way that doesn't make the very act of legislation impossible.Benhttps://www.blogger.com/profile/15344649128973165027noreply@blogger.com