Re: Is Scalia's Originalism Really Homophobia?

I offer some corrections to what seems to me to be a misunderstanding of textual originalism, which Antonin Scalia claims is the best approach to constitutional interpretation. There are a few typos in the video that I didn't notice before I uploaded it. Sorry. :-(

Links:

SeanChapin1's video:

http://www.youtube.com/watch?v=PyySyKC8ZWM

Text of Justice Scalia's 1996 address at The Catholic University of America:

http://www.joink.com/homes/users/ninoville/cua10-18-96.asp

James Madison on originalism (quoted in the video):

http://www.archive.org/stream/writings09madiuoft#page/190/mode/2up

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[LordZentei]

ProfMTH, what is your philosophy on how the Constitution should be interpreted?

[ProfMTH]

@LordZentei It seems safe to say that I favor a combination of originalism, original intent, and living Constitution. The text shouldn't be entirely unmoored from what it was understood to mean and intended to accomplish, but our understanding of it must not be ossified by the past.

[ancjr]

Scalia textualist, originalist? He dispensed with this stance and embraced substantive due process in McDonald v. Chicago.

[filmstocker]

@filmstocker (cont) But this nearly universally agreed upon viewpoint is totally unavailable to originalists... which is one glaring reason that as an approach to law, it is a fail: It fails the slavery test case. It is a philosophy which blithely allows for slavery--and any number of other civil rights deprivations--as perfectly in keeping with the Constitution unless the Const specifically tells them otherwise. Dreadful.

[filmstocker]

@ProfMTH

"dead on arrival"

I just told you: It's not an argument that I imagine to be a SCOTUS homerun c1840. It is, however, an argument which outlines the basic conflict between Const principles and slavery even w/o 13&14. It is an argument & INTERPRETATION of the constitution, which nearly ALL Americans hold dear in some form or other now: that the philosophy of the original Const was in conflict with slavery, even if it's not an idea the framers intended or would have approved. (cont)

[ProfMTH]

@filmstocker First, Filmstocker, if you have so much to say, it would be better for you to make a video response. Loading this page up with comment after comment after comment is a bit much--especially when so many of them are repetitive. Second, without the 13th and 14th Amendments there would be much inequality that we'd have a very hard time developing a constitutional argument against, if one could be developed at all.

[ProfMTH]

@filmstocker " I just told you a basis for building a Constitutional argument against slavery without the Reconstruction amendments...."

That argument would have been dead on arrival prior to the time of the Reconstruction Amendments. In fact, when that sort of argument was made, it was dead on arrival. The Reconstruction Amendments changed the U.S. Constitution for the better in very significant ways, providing the basis for significant expansions in legal equality and much more.

[filmstocker]

@filmstocker "would convince all modern people" should read "would convince most modern, thinking people."

[filmstocker]

@filmstocker I think-even in the absence of the 13th and 14th-this argument "The Bill of Rights should apply to everyone because we're all people of the United States" would convince all modern people that slavery is unconstitutional. It would not convince the originalist, which is scary, which is the glaring hole in the ridiculous doctrine...because the fact that slavery clearly conflicts with the foundational principles of our country is something we're all in agreement on.. or so I believed

[filmstocker]

@filmstocker If the 13th & 14th amendments were rescinded by legislative vote tomorrow, you would have no argument against slavery which could build on an interpretation of the constitutional principles that remained? Really? Saying "The Bill of Rights should apply to everyone because we're all people of the United States," is not a good argument against slavery?