Scalia believes people have a Constitutional right to discriminate

Discussion in 'Politics, Religion, Social Issues' started by mcrain, Jan 4, 2011.

  1. mcrain macrumors 68000

    mcrain

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    #1
    Justice Scalia believes that a majority of people have the right to pass laws that discriminate based on gender and sexual orientation; and nothing in the Constitution would prohibit that governmental action.

    Link

    This comment reminds me of, but is even beyond Rand Paul's comments of last year in which he indicated he believed private individuals and businesses have a Constitutional right to discriminate for any reason, including race...

    I think it might be time for Mr. Scalia to hang up the robe.
     
  2. Tomorrow macrumors 604

    Tomorrow

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    He's basically saying that he believes these should be legislative issues, not constitutional ones. Much ado about nothing, IMO.
     
  3. fivepoint macrumors 65816

    fivepoint

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    A reminder to anyone wanting to give their $0.02 to the conversation... this is a question not of morality, right or wrong... but of constitutionality. The constitution has an amendment process and a legislature, as Scalia points out, for just this reason. Scalia is stating what the constitution currently reads, not what he or anyone else would want personally.

    Anyway, please proceed...
     
  4. mcrain thread starter macrumors 68000

    mcrain

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    Much ado about NOTHING? Are you out of your mind? If the legislature passes laws that discriminate based on gender or sexual orientation, where do women or LGBT people go for relief?

    The Courts! He is on the Supreme Court, and he's saying the US Constitution does not do what it plainly says it does! He's losing his freaking mind!
     
  5. fivepoint macrumors 65816

    fivepoint

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    Notice how Mcrain doesn't start by making the constitutional argument (the only argument that matters) but rather focuses on the social aspects, the feelings, the fear... he and most others want the focus to not be on the actual words of the constitution, but on the emotions of the issue.

    It wouldn't matter if Scalia was the biggest pro-LGBT and pro-women's rights advocate in the world... if he's a constitutionalist, and a properly functioning judge (not legislator) his feelings are meaningless and only the words of the constitution matter. He's not pointing out what he WANTS done or what the document SHOULD say, but rather what it DOES say.

    The activists want you to believe that 'equal protection under the law' means 'no one can discriminate, for anything, ever'... which is of course patently ridiculous.
     
  6. Huntn macrumors G5

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    Libertarians or at least some faction believe it is ok to discriminate when it comes to what they own such as their restaurant.

    It's much ado about nothing if you are happy with the notion of discrimination.

    A good point. Are our Supreme Court Justices in place just to blindly enforce the Constitution without a moral basis? If this is a matter where the Constitution needs updating, this would be it.
     
  7. Tomorrow macrumors 604

    Tomorrow

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    You're acting as if you believe that only the Constitution matters, and not the laws of the US and states' governments. Is that the case?

    Nobody's going to pass a law that says it's okay to discriminate against women, and laws are being passed all the time which prohibit discrimination against the LGBT community.

    Again, just because something isn't prohibited by the constitution doesn't mean it's going to happen. :rolleyes:

    Except it doesn't say that.

    He's only pointing out that these are issues for lawmakers and not for the constitution.

    Please, put the mirror down.
     
  8. mcrain thread starter macrumors 68000

    mcrain

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    #8
    Actually, it says:
    From earlier linked article.
     
  9. fivepoint macrumors 65816

    fivepoint

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    Actually, everyone believes in discrimination and actively discriminates every day... some of us are just more aware of it than others. Discrimination has been made into an evil word... but it's actually a great thing, and very important to the human race in a wide variety of scenarios.




    Yes. Their job is to simply determine if the constitution, and laws passed by the legislature are being followed. Not to redefine laws as they morally see fit.
     
  10. Tomorrow macrumors 604

    Tomorrow

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    And as far as I'm aware, there's no law saying that the courts can discriminate against someone during the due process of law.

    That passage from the Constitution certainly doesn't guarantee that a cab driver can't discriminate on the passengers he picks up, or that an employer has to offer the same benefits package to a non-married couple that he offers to married couples, or that both men and women have to be on the front lines in military battles - those are issues for the legislatures, and not the constitution.
     
  11. Queso macrumors G4

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    Laws are also being passed which promote discrimination against the LGBT community. One wonders if Scalia is inferring that LGBT rights lawyers should steer clear of the SCOTUS, and using "interpreting the Constitution in an interview" to do such.
     
  12. leekohler macrumors G5

    leekohler

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    I'm sorry- but people here are actually trying to argue that the US Constitution does not offer equal protection under the law? REALLY?

    My god, we're in trouble.
     
  13. Ugg macrumors 68000

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    #13
    So, according to 5p, Tomorrow and Scalia, since minor children weren't considered persons under the law in 1868, they don't deserve protection under the law?
     
  14. Tomorrow macrumors 604

    Tomorrow

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    You're misunderstanding the same way mcrain is.

    This is not about whether we believe someone deserves protection under the law.

    Scalia has pointed out that the Constitution does not require, or prohibit, legislatures from passing discriminatory laws. That's all he said.

    He's saying - and I'm agreeing with him - that if a legislature chooses to pass laws which are either discriminatory or anti-discriminatory, then that's it's prerogative; the Constitution doesn't prohibit it.

    His statement, and my agreement with it, does not say that we favor discriminatory laws. He's speaking a statement of fact about the difference between the Constitution and statutory laws.
     
  15. mcrain thread starter macrumors 68000

    mcrain

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    #15
    The 14th Amendment to the U.S. Constitution: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    So, no government (state or federal) may make any law that limits a citizen's privileges, AND no government (state or federal) may make any law that deny's anyone EQUAL PROTECTION of the laws.

    Equal protection of the laws... I wonder if the US Executive, Legislature, Supreme Court and every state government might have possibly already made the determination of what that might mean.

    I'm not making arguments based on feelings or emotions, I'm saying that what Scalia is saying is something that I fervently disagree with from a legal standpoint.
     
  16. leekohler macrumors G5

    leekohler

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    #16
    It most certainly does prohibit discriminatory laws, as was just pointed out above.

    I simply cannot believe we're having this conversation in this day and age. It's baffling. The wacky right wing has done a great job spreading misinformation and outright lies.
     
  17. codymac macrumors 6502

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    This isn't the first time Scalia has stated this position.

    See the dissenting opinion (by Scalia) in Romer v. Evans, 517 U.S. 620 (1996).

    I just love how these discussions dissolve into ad hominem before the end of the first page.
     
  18. Lord Blackadder macrumors G5

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    I actually agree with Scalia here.

    The constitution is designed to to allow the citizens to decide what kinds of rules they want to live by, within certain bounds. It is a document that is designed to preserve the rule of law - a law of, by, and for the people.

    Scalia (typically for a lawyer) is speaking in a narrow legal sense. The mechanism of the constitution permits the people to discriminate - as long as enough of us share that discriminatory sentiment to enact or enforce legislation. For example, the Chinese Exclusion Act of 1882 was a highly discriminatory piece of legislation, informed by racism more than anything else, but also business interests. This law, however, does not violate the letter of the law in the eyes of the constitution. It was only changed because the people decided that it should be changed.

    It is clear to me that when Thomas Jefferson wrote "...all men are created equal...", he was not being literal, and he certainly was not prepared to put his money where his mouth was on that statement - and his colleagues were even less enthusiastic. The constitution is, in it's origins, an 18th century document, and the framers of the document had to make it flexible. If it was set strictly in the morality ofn the 18th century, it would not have survived this long. Think about how much discrimination was practiced in the 1780s versus today. The constitution allows the laws of the nation to reflect the will of the people. There is always tension in this - sometimes groups struggle for many, many years to gain sufficient mandate to change laws that discriminate against them. That is not the constitution's fault - Jim Crow existed not because of laws so much as the people who called for, enacted, and supported those laws.

    But the fact remains that the constitution does not forbid discrimination in the general sense. It does forbid certain types of discrimination, but let us not forget that discrimination that is removed via amendment can itself be removed or amended.

    This is yet another example of the constitution (and by extension, all of the laws we are governed by) being living documents in constant state of flux. The people decide what kinds of discrimination are tolerated and which are not. The constitution merely provides a legal framework within which moral issues are resolved through legislative, executive and judicial means.
     
  19. leekohler, Jan 4, 2011
    Last edited: Jan 4, 2011

    leekohler macrumors G5

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    #19
    So, then what does the 14th amendment mean? Many laws have been struck down because of it. Jim Crow was struck down by the Courts, not voted away by the people.
     
  20. Lord Blackadder macrumors G5

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    The courts strike down laws because they are challenged in the courts, either directly by people or by their representatives. The point is, the constitution does not outlaw discrimination per se - what it does do is provide a mechanism for the people to outlaw those forms of discrimination they wish to outlaw.

    Discrimination, or the assigining of one value to one thing and a different value to another, similar (or dissimilar) thing, is itself amoral. It is an innate human quality, without which no society could function. The question is not about discrimination itself but unjust discrimination - and that requires subjective judgement that can change over time. The basic framework of the constitution avoids the subjective nature of morality by allowing the citrizenry to decide what is permissible discrimination and what is not.

    I know where you're coming from when you express outrage at the thought that discrimination is protected under the constitution, but you have to remember it does so only in the technical sense. You and I, as voters, ultimately decide what is right and what is wrong.
     
  21. leekohler macrumors G5

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    #21
    I still don't follow. Very few civil rights issues were solved with a popular vote. AFAIK, none have been (could be wrong). These issues have solved by court action, many times very unpopular. I fail to see how this has anything to do with voting.
     
  22. dscuber9000 macrumors 6502a

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    #22
    First line of the Constitution:

    "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

    Sure is hard to find liberty when someone won't let you in their restaurant because you're black. Scalia is an idiot.
     
  23. renewed macrumors 68040

    renewed

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    But this is imposed by a private entity and not authority. You do not have to chose to eat at that restaurant. What about a private club? It will not allow entry to everyone, only members. Is this against the constitution?

    The argument here isn't if it is right or wrong. The argument here is if it is constitutional. The argument would be that the constitution itself does not decide but that legislative bodies do, theoretically instated by us the people. The argument is to stop using the term unconstitutional when in fact it isn't; it could be argued as against current laws but not as unconstitutional.
     
  24. codymac macrumors 6502

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    Jim Crow Laws were upheld due to the 14th amendment (Plessy v. Ferguson, "separate but equal") prior to Brown v. Board of Education.

    As to the meaning, there's several tests that are used by SCOTUS for the equal protection clause.

    Read up on how the amendment was ratified and the SCOTUS tests. Interesting stuff.
     
  25. Lord Blackadder macrumors G5

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    Very little ever gets done through a popular vote - usually it's congressional legislation, or a supreme court ruling on an existing law, or (more rarely) an executive action of some sort. But those things are all heavily influenced by popular opinion. We elect the people who enact those laws, and the courts, while generally more conservative than the legislature, are focused on ensuring that laws are both constitutional and make legal sense.

    I want to make it clear that I don't think the constitution protects unjust discrimination. You have to think like a lawyer on this. Things that are legal can still be wrong. Things that are illegal can be right. Morality and legality are not the same thing.

    The constitution is not designed to be a primarily moral document, but a legal one. It was written by lawyers (and part-time philosophers), not priests (thank goodness). You will probably contend that all unjust discrimination, even in the 1780s, was wrong and therefore the laws perpetuating that discrimination were wrong. I agree - but they were legal, until we decided otherwise. There is a difference between a law being unconstitutional and a law being deemed immoral or out of step with the times. Sometimes a law is all of those things, sometimes only one or the other.

    I find it a frustrating juxtaposition myself.

    None of the people who wrote that line were very interested in allowing black people to "secure the blessings of liberty" as we define them today.
     

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