Thursday, January 06, 2005
At legalaffairs.org
this is a debate about Thomas's jurisprudence.
One last point. You suggest that VMI and Lawrence are policy-making usurpations, with no basis in the rights guaranteed to the people by the constitution. Thomas, of course, agrees with you. Seeing the constitutional basis in both cases is simple, really. Virginia offered an educational opportunity to men but not to women (not even in a separate-but-equal facility; not at all). In its defense, Virginia could offer no better reason than that it had been doing so for a long time. That's not a policy dispute. It's unjustifiable unequal treatment, and hence a violation of the constitutional mandate that Virginia treat people equally
I'll repeat this one bit:
In its defense, Virginia could offer no better reason than that it had been doing so for a long time.
For Scalia and Rehnquist, that's enough. They believe in a living constitution, in which if an unconstitutional policy goes unchallenged long enough, it gets grandfathered in, sort of stare decisis in reverse. I regard that as both bad policy and bad logic. A little bit of this sort of kneejerk conservativism might come in handy in brushing off silly new unfounded claims, but if a suit is otherwise meritorious, I don't see how "I would got away with if it weren't for you meddling kids" lends any weight.
I had not seen this section of legal affairs before. I wanted to jot this down before I go back and read the whole thing. Thomas, in contrast, is far less open to thsi sort of thing. Thomas wouldn't be my first choice for CJ, if an opening comes up.
We really are vultures to be even having these discussions so frankly - O'Connor survived cancer, I think, and I have a client who has throat cancer over ten years ago and is still kicking. On the other hand, Bush isn't very reliable for getting things right. I'd be comfortable with Thomas as chief, and if not him, we don't know who. A new chief could continue with business as usual, or could make major sweeping changes, either in a good way or a bad way.
I'm still thinking a lot about "Collapse." And tsunamis and supervolcanoes and killer asteroids and weapons of mass destruction. We live in interesting times. In the 60s, it seemed like the court was driving social change. These days, the court can't keep up. Maybe it was always thus.
Since about 1970, I've been watching certain trends. On the one hand, doom and gloom, ecological collapse, overpopulation, crazies with nukes, out of control dictators, both elected and self-appointed.
On the other hand, rising tides of prosperity, space flight, supercomputer networks,
windmills, robot boys, all the cool stuff of those tom swift novels.
I had a reasonable belief that I would be able to get an education, have a career,
be a small player on the world state, and maybe someday do something really cool like write a book.
I thought I'd be able to avoid being shot down like a dog in vietnam, but that I had a good chance of going to jail over my beliefs. I figured I'd live on a commune with a lot of people around and together we'd fight for social justice and eat tofu.
I focused on being a politician rather than a scientist, because I'd seen how science could be turned to the dark side and used for evil.
Funny how things turn out. I'm tentatively going to say it's the progress of science
more than the struggles of dogooders that has been driving what progress we've made.
My plan to have a law firm fighting for the right to anonymous political speech online fell apart, and the internet went on to develop just fine without me.
If I'd been successful at what I'd tried to do, it could have helped a little,
and I might have made a decent living at it, and might or might not have lost everthing anyway.
Last night at 4 am the power went out in most of the house. We got up, found out which circuits still work, ran some extension cords, and are getting by, but it's another symptom of collapse.
It's important not to confuse my persona collapse issues with broader social trends.
More people are doing better than ever. Conversely, more people are doing worse than ever - 1.3 billion in china, means that for ever american when i was a kid, there is now a chinese person, living in relative poverty, but with hope that things are getting better. These are still the dark ages. I expect the america I knew to collapse, while the civilization it represented grows.
I'm gonna stop here.
this is a debate about Thomas's jurisprudence.
One last point. You suggest that VMI and Lawrence are policy-making usurpations, with no basis in the rights guaranteed to the people by the constitution. Thomas, of course, agrees with you. Seeing the constitutional basis in both cases is simple, really. Virginia offered an educational opportunity to men but not to women (not even in a separate-but-equal facility; not at all). In its defense, Virginia could offer no better reason than that it had been doing so for a long time. That's not a policy dispute. It's unjustifiable unequal treatment, and hence a violation of the constitutional mandate that Virginia treat people equally
I'll repeat this one bit:
In its defense, Virginia could offer no better reason than that it had been doing so for a long time.
For Scalia and Rehnquist, that's enough. They believe in a living constitution, in which if an unconstitutional policy goes unchallenged long enough, it gets grandfathered in, sort of stare decisis in reverse. I regard that as both bad policy and bad logic. A little bit of this sort of kneejerk conservativism might come in handy in brushing off silly new unfounded claims, but if a suit is otherwise meritorious, I don't see how "I would got away with if it weren't for you meddling kids" lends any weight.
I had not seen this section of legal affairs before. I wanted to jot this down before I go back and read the whole thing. Thomas, in contrast, is far less open to thsi sort of thing. Thomas wouldn't be my first choice for CJ, if an opening comes up.
We really are vultures to be even having these discussions so frankly - O'Connor survived cancer, I think, and I have a client who has throat cancer over ten years ago and is still kicking. On the other hand, Bush isn't very reliable for getting things right. I'd be comfortable with Thomas as chief, and if not him, we don't know who. A new chief could continue with business as usual, or could make major sweeping changes, either in a good way or a bad way.
I'm still thinking a lot about "Collapse." And tsunamis and supervolcanoes and killer asteroids and weapons of mass destruction. We live in interesting times. In the 60s, it seemed like the court was driving social change. These days, the court can't keep up. Maybe it was always thus.
Since about 1970, I've been watching certain trends. On the one hand, doom and gloom, ecological collapse, overpopulation, crazies with nukes, out of control dictators, both elected and self-appointed.
On the other hand, rising tides of prosperity, space flight, supercomputer networks,
windmills, robot boys, all the cool stuff of those tom swift novels.
I had a reasonable belief that I would be able to get an education, have a career,
be a small player on the world state, and maybe someday do something really cool like write a book.
I thought I'd be able to avoid being shot down like a dog in vietnam, but that I had a good chance of going to jail over my beliefs. I figured I'd live on a commune with a lot of people around and together we'd fight for social justice and eat tofu.
I focused on being a politician rather than a scientist, because I'd seen how science could be turned to the dark side and used for evil.
Funny how things turn out. I'm tentatively going to say it's the progress of science
more than the struggles of dogooders that has been driving what progress we've made.
My plan to have a law firm fighting for the right to anonymous political speech online fell apart, and the internet went on to develop just fine without me.
If I'd been successful at what I'd tried to do, it could have helped a little,
and I might have made a decent living at it, and might or might not have lost everthing anyway.
Last night at 4 am the power went out in most of the house. We got up, found out which circuits still work, ran some extension cords, and are getting by, but it's another symptom of collapse.
It's important not to confuse my persona collapse issues with broader social trends.
More people are doing better than ever. Conversely, more people are doing worse than ever - 1.3 billion in china, means that for ever american when i was a kid, there is now a chinese person, living in relative poverty, but with hope that things are getting better. These are still the dark ages. I expect the america I knew to collapse, while the civilization it represented grows.
I'm gonna stop here.
Comments:
Post a Comment
