ABA Journal


The Modern Law Library

Scalia Discusses Views on Textualism and the Process of Co-Writing His New Book

Jul 26, 2012, 02:00 pm CDT


It is entertaining to read people who adore Justice Scalia for ideological reasons complaining that nobody could possibly disagree him out of anything other than ideology.
An enlightened gentleman will always defend one’s right to disagree with him. The usual outburst from the Living Embodiment of Posner’s Complaint is an unfortunate example of the irrational discourse that permeates the political landscape. Tolerance is a hallmark of American democracy, and we must strive to “reason together,” to cite a biblical phrase, to neutralize the terrible cultural polarization that now infects the USA.
If you’ve read the Constitution at a single sitting, surely you are aware that it has many amendments, an astounding number of which were not written by the Framers nor ratified by the original (white, male) population of the former colonies.
It would surprise me if more than 10% of the people passionately defending Justice Scalia’s opinions do so because they have read and agree with his legal reasoning, rather than because they like his results and share his political views. Anyone who has read his opinion in Employment Division v Smith could not, with a straight face, insist that they or Justice Scalia believe the Constitution to be a “simple” document.
As for those of you who admire Scalia’s writing. I suggest you read Justice Cardozo or Justice Holmes. Those men could write. As to his “intellectual” approach, it should be noted that for the most part he speaks to conservative groups, such as the “Federalist Society”. If truth in advertising laws applied to political organizations it would be called the Anti-Federalist Society. The Federalist Party led by Washington, Adams and Hamilton believed in a strong national government as a guarantor of liberty from the actions of individual states as did the Republican Party of Lincoln and Theodore Roosevelt. The “Federalist Society” adopts the view of Jefferson Davis that it is the states rather than the people who are supreme and that the states can run rough shod over their citizens and that we are nothing more than a collecton of petty states. In my lifetime most assaults on inidvidual liberty have occurred at the state not the federal level. But then I’m old enough to remember the battles for Desegregation and Integration. As Professor Santayana noted: “Those who forget the past are condemned to relive it.”

By Doodle Dandy on 2012 07 26, 4:58 pm CDT

Doodle Dandy - You could add Marx to Santayana:  “Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce.” 

Sadly, Scalia is no tragedy.

By Pushkin on 2012 07 26, 5:27 pm CDT

The book “Reading Law: The Interpretation of Legal Texts” is a must have for any legal library. I would anticipate that this important treatise will be a resource for lawyers and academics long after Justice Scalia has passed from the scene.

By Yankee on 2012 07 26, 5:48 pm CDT

“important treatise will be a resource for lawyers and academics long after Justice Scalia has passed from the scene.”

Just as the legal treatises written by the Rightist judges of the Rightist Third Reich are also resources for lawyers and academics long after those Third Reich judges passed from the scene.

By Doodle Dandy on 2012 07 26, 5:57 pm CDT

Doodle Dandy, while I might agree with most if not all you wrote, I would still suggest there is value for attorneys to be versed in the textualist “method”, as ultimately if the judge youa re arguing in front of is Scalia-lite, you should be able to cater your arguments to his/her viewpoint. To that extent, it might make sense to read a book of Scalia’s, though if you’ve read one I imagine you’ve read them all, as he is a bit of a broken record.

By NoleLaw on 2012 07 26, 6:02 pm CDT

To qualify myself @5 - I wouldn’t compare anything of Scalia’s to Nazi “jurists”.

By NoleLaw on 2012 07 26, 6:04 pm CDT

Does anyone know if Justice Scalia has ever answered the question, why legislative intent counts for interpreting the Constitution but not for laws passed by Congress? Or why, with respect to the Constitution, the views of the drafters are more important than the views of everyone who voted for ratification?

By Mr.PC on 2012 07 26, 6:11 pm CDT

Doodles: At @1 you lament against the “terrible cultural polarization” that now infects the United States, while calling for “tolerance” and pleading that we “reason together.”

Then, @4 you pull out your Hitler Brush and compare Justice Scalia to officials of the Third Reich. 

The disconnect between these two statements is lost on you, bless your heart.

By Yankee on 2012 07 26, 7:04 pm CDT

@ 3: Justice Scalia has a co-author?! So does Bristol Palin!!! Like, it is SO AWESOME that great conservative minds think alike!!!1!

(Sorry—no Hello Kitty images available.)

By BMF on 2012 07 26, 7:58 pm CDT

@9 I’m shocked at the uncharitable and disrespectful statements you direct at Justice Scalia and the Miss Palin.  No doubt you need to avail yourselves of the lessons in civility available at iCivics, the website that Justice O’Connor is peddling.

By Yankee on 2012 07 26, 8:29 pm CDT

I personally find that Scalia is one of the most teleological reasoners I’ve ever seen.  I also find him very intellectually dishonest.  “Sure, I’m a textualist, but anything that disagrees with my politics, I’ll just pretend like it isn’t in the text.”  I think he has done a great deal of harm to the court’s legitimacy.

Having said that, I don’t think Scalia is worth becoming hyperbolic over in *either* direction.  I would predict that future legal professionals will neither revere nor revile him.  He will be known for his colourful writing, but not for his reasoning, because his reasoning is simply too inconsistent.  Like Taney in a way, but not on such a large or historic scale—he can be dead right sometimes, but then will abandon all principles to reach conclusions palatable to his political opinions in other cases.

By Another Andy on 2012 07 26, 8:42 pm CDT

@ BMF - I wish this site had a “likes this” option for comments.

By NoleLaw on 2012 07 27, 12:55 am CDT

NoleLaw @ 12: Thanks. Frankly, I’m shocked it hasn’t been X-ed by the moderators. But I sometimes lose patience with certain posters who idolize certain members of the judiciary.

That being said, I actually DO own a couple of the Garner/Scalia books. (Let’s give credit where credit is due: Garner does the heavy lifting in compiling most of these tomes. His writing style is totally different from Scalia’s.) I own them precisely for one of the reasons you pointed out further up the board: I argue almost exclusively in front of extremely conservative jurists. Some of them are textualists, but at the lower court level that doesn’t much matter. Many of them, however, worship the ground Scalia walks on. And they often rule based on their politics. Your brief is often the most important argument you make in front of the judge; the appearance is often “gravy.” The “voice” of your brief is key. If I sound like a liberal apologist, even if the facts are on my side, and the law I choose supports them, I could still go down. You have to admit that regardless of how you feel about the guy, Scalia pretty much epitomizes of the “conservative voice” of the Court.

Yankee @ 9: Gotcha! By the way, civics has very little to do with civility. For the latter, I would recommend “Miss Manners’ Guide to Excruciatingly Correct Behavior,” although she has pointed out that commenting on other people’s lack of manners in public is also rude.

By BMF on 2012 07 27, 4:26 am CDT

@13 You comment: “. . . commenting on other people’s lack of manners in public is also rude.”

I am sure it is

By Yankee on 2012 07 27, 10:22 am CDT

According to textualism and originalism, does the right to bear arms mean the right to own muskets only since automatic and semiautomatic weapons did not exist. Or should free speech be limited to speaking out loud and written text only rather than including radio, television, movies, etc.

By Notalawyer on 2012 07 27, 11:59 am CDT

Right to bear “arms” by “militia” which protected states from the federal government, correct.  If the founding fathers ever said anything it was that the constitution was a living breathing document that was meant to change with the times.

Like GPS in your phone?  It didn’t exist - so lets just ignore it?


Read the constitution today everyone.

By Robert Paul Norman on 2012 07 27, 1:42 pm CDT

@ 15 - The Supreme Court is not clear on the issue, you should expect commenters on this side to be.

By NoleLaw on 2012 07 27, 1:44 pm CDT

What issue NoleLaw?  I expect commenters to leave their politics out of their comments the same way I expect Judges to follow their oath and follow the fact and the laws.  I think they normally do. 

So, I don’t normally say things to Judges that I think they want to hear.  I save that for arugments to juries.

By Robert Paul Norman on 2012 07 27, 2:01 pm CDT

The gun issue, apologies for the lack of clarity.

By NoleLaw on 2012 07 27, 2:10 pm CDT

Everytime a tragedy happens like Aurora of Columbine two things happen

(1) people want to blame guns instead of the people that yield them.  It is NOT possible to regulate criminals - that regulation only works on law abiding persons.  And (2) there is a spike on gun ownership, bc people (unlike the government) fully understand that goverenment always get there after these events occur.  People believe, rightly or wrongly, that they need to protect themselves.

In that case, we have to pray that the people with all the new guns have a very strict moral compass.  Of the result, is the national guard at every public place.  And, sadly, this guy looked like a police officer or a soldier.

The single most difficult even we all have to work on.

By Robert Paul Norman on 2012 07 27, 2:26 pm CDT

Scalia is like Santa Claus to the right, an angry, rotund, phantom, shouting gibberish believable only to children and the infirm.  The best thing is, even he doesn’t believe in original intent, or textualism, or reading tea leaves.  Whatever he is calling it this week. It is the law, simply because he says it is.  Any half-wit can pick through history to find bits and pieces that add up to the conclusion they are seeking.  Pretending it is a true, honest endeavor, however, takes a real sociopath.

By alawyer on 2012 07 27, 2:53 pm CDT

Did any one here bash Roberts for Interpreting a penalty to be a tax and “interpreting” that statute by saying that Congress has constitutional power to pass such a tax EXPRESSLY under the Constitution.  Even though it’s not called a “tax” anywhere but in Robert’s “interpretation.”

Oh yeah, that is what the judicial branch is supposed to do - interpret statutes.  Sorry, I guess that is me, as a history major, “picking” through history.  Or at least that is what I always told my students before they took the constitution test.

But, dont tell me, that opinioin was “the left” (whoever they are) being intellectually honest right.  So, Roberts could find a way to interpret that statute. 

Sorry if I am a half-wit, disrespecting eveyone that disagrees with me like Scalia always does way over there on the “the right.”

A true honest endeavor?  Who is the sociopath here.  Us or those guys sitting on the highest court of the land.  Show some damn respect - or better yet - take a look at the amendment that allows to us to put this drivel out here.

Gosh, I wonder why we can’t get anything accomplished.

By Robert Paul Norman on 2012 07 27, 3:29 pm CDT


I think your concession that it is not possible to regulate criminals is a waltz out of tune with society. I mean, we do regulate, e.g., oxycodone, despite the fact that many people will engage in criminal behavior by evading this regulation to get their hands on it. I’m not sure we are as a society willing to or interested in throwing up our collective hands and saying “we can’t totally solve a problem, therefore, we shouldn’t attempt to start solving it.”

By jwzich on 2012 07 27, 3:45 pm CDT

How does Justice Scalia justify that abomination to most of the Founders—paper money?
Where does the US Constitution provide for an Air Force?
Would the Founders consider the Crips, the El Rukns or the Jolly Stompers, to be “well-regulated militia”?  Or would the Founders believe that “Arms” only include muzzle-loading muskets & pistols?
Is a lot of “Originalism”—except on freedom of religion—result-oriented?

By John Fenner on 2012 07 27, 3:53 pm CDT

And I quote myself

“The single most difficult even[t} we all have to work on.”  So I am not in any way arguing we shouldn’t try.  A man from my community put crosses up at Aurora like he did at Columbine.

My comment is not a waltz - but it is actually based on society.  It is a just a cold hard fact that criminal’s buy guns and kill people.  The assault rifle ban lapsed, but Holmes used guns after the assult rifle jammed. 

And, he went through a background check.  Other than arguing for the OK Corral, with a “good cop” in every situation. I will say it again.
“The single most difficult even[t} we ALL have to work on.”

By Robert Paul Norman on 2012 07 27, 4:02 pm CDT

The militia were soldiers from the individual states. Not gang members running drugs with AK 47’s.   

One more time - the constitution is a living document, meant to be interpreted by what is happening NOW.  The founding fathers were wise.  They expect the same from us. 

Read the Constitution and The Perfect Constitution by Larry Sabato from the Univ. of Virginia law school.  Jefferson looks down on U of V everyday from Monticello.

By Robert Paul Norman on 2012 07 27, 4:13 pm CDT

@8 “The disconnect between these two statements is lost on you, bless your heart”

Apparently reading comprehension is lost on you. The comparison was not between Scalia and the Third Reich. The comparison was between how legal scholars of the future will look back on failed, abominable legal ideology.

By Doodle Dandy on 2012 07 27, 4:51 pm CDT

Doodle Dandy - are you also a Yankee’s fan.  Or would that be @ 14 Yankee.

Legal scholars like who; Justice Scalia and Roberts?  Or the rest of us sociopaths commenting about other people’s comments. 

Me, I thought the Aurora shooter and the Nazi’s were the sociopaths.  But, I also thought the rest of us had more sense than say, Fox News - and said things to simply get a “rise” out of others.

By Robert Paul Norman on 2012 07 27, 5:19 pm CDT

@26 Robert Paul Norman has the right idea, but dilutes his message by speaking in metaphors.  We agree:  The constitution s a “living document.”  But let’s be clear.  What we are all saying is that the constitution is meaningless.  It means whatever those in power want it to mean. 

When “we” take power, it will mean what “we” want it to mean.

By Charles Victor Szasz on 2012 07 27, 5:20 pm CDT

@29 - That is, unfortunately, what some areas of Constitutional interpretation amount to.

Then again, even seemingly clear Constitutional directives can be made to appear as spilled ink by jurists on both sides.

But let’s be clear—it’s always been that way, since the beginning.  This isn’t a new development.  Scalia just feels less responsibility to adopt at least the pretense of non-teleological reasoning.

The lie of fauxriginalism is this: Oftentimes the original intent WAS the future, “wiser” generations would figure it out.  The Convention Notes show that the Founders often disagreed over the meanings of what they were writing, and that parts were intentionally left vague because they knew that the fragile consensus could be broken by insisting on more precise terms.

By Another Andy on 2012 07 27, 5:25 pm CDT

quoting fomer Justice O’Connor about Robert’s being called a “traitor:”

Retired Supreme Court Justice Sandra Day O’Connor defended Chief Justice John G. Roberts Jr. on Wednesday, saying some criticism of his vote to uphold the health care law is “unfortunate.”

Speaking to the Senate Judiciary Committee, O’Connor referred to the criticism to support her call for greater civics education, according to ABC News and The BLT: The Blog of Legal Times.

O’Connor noted that critics have called Roberts a “traitor” for his vote. “Comments like that demonstrate, only too well, the lack of understanding that some of our citizens have about the role of the judicial branch,” she said.

O’Connor has founded a free website called iCivics to teach children about government. She also says schools need to devote more time to the subject. ( I WOULD SAY MUCH MORE TIME).

Mr. Szasz - I appreciate your respectful comment.  If the constitution is “meaningless” which I refuse to say, it is only because we won’t do anything about it.  Professor Sabato’s book the Perfect Constituion, argues for a new constitutional convention, bc amending it is impossible given the present political “stalmate” on everything and the absolute lack of respect that causes it.

So “we the people”  I assume) can truly take power - exactly the way the “founding fathers” designed it could or would happen. 

If nothing else, we certainly have to admire their work.

By Robert Paul Norman on 2012 07 27, 5:41 pm CDT

fauxriginalism - nice word Andy, but doubt it was a lie. 

The art of compromise was how we got here.  It is also, how we get THERE!!!

By Robert Paul Norman on 2012 07 27, 5:48 pm CDT

@30 Another Andy

I agree completely with your comment that “it’s always been that way, since the beginning.”  The problem is when people try to disguise this reality by using metaphors like “living document.” 

Trust me, when “we” take over, nobody will fail to understand that “living document” is a euphemism for “scrap of paper.”

By Charles Victor Szasz on 2012 07 27, 5:52 pm CDT

living document, living document, living document, living document. 
living document, living document, living document, living document.
living document, living document, living document, living document.
living document, living document, living document, living document.

When that living document actually becomes reality.  You will be absolutely right.  We won’t need it anymore.  We also won’t need banks, the stock market, and hopefully blogs. 

But, until then “phasers on stun - no sign of intelligent life her.  Scottie - two to beam up.”

By Robert Paul Norman on 2012 07 27, 6:03 pm CDT

As I learned the constitution, its purpose was to escape the King and his law. Common law expressed as following prior rulings so as to respect the historical precedents laid down by those Judges who came before. Textualism, as now worshiped by those appointed to ” follow their politics” is much like Code Law [applied in many latin countries enabling the sovereign to interpret in case on its own]. Here, Scalia asserts that he is the only one who can read, understand and interpret the words of the Constitution, without reference to those who came before. He, and his majority, have become the King, and the corporations, his princes. The rest of us are the New Plebes…...........

By Jerome Reisman on 2012 07 27, 6:13 pm CDT

Associate Justice Scalia, and his “originalism” philosophy, at this point have many decades of use. But it is and remains so simplistic that its chief opponent is a chimera straw man. The opponent: The Framers’ intent is irrelevant and is trumped by evolving notions of decency. Ignore the Framers’? Of course not.

But as Justice Scalia has said, if the Eighth Amendment bars “cruel and unusual punishment,” which it does, he errs when he opines that hanging is the capital punishment which is always at issue in capital cases—because that was the punishment at the Framers’ time.

The Framers could have set limits on hanging a person to death. In fact, it is fewer words.

They did not.

Instead the Framers’, wisely, were looking to set up as close as they could, a value-centered utopia. The Bill of Rights was not a summary of the common law. It was a summary of what had gone very wrong in Western Civilization . . . and an attempt to avert it.

Justice Scalia, once again, is confused. His interpretative style is literalism (to a flaw). It is fundamentalism. So when the great Plato wrote of The Good, The True, and Beauty. I ask now, are we limited to what Plato thought was good, true, beautiful? The cosmos is filled with wonders never seen by Plato, but I have no doubt he would have embraced them as good, true, beautiful. This is “originalism.” Justice Scalia high jacked the word.

Justice Scalia is word-bound and tongue-tied. Certainly he must know that values transcend objects, that many similar objects are in essence the same value.

Recently he spoke of corporate speech rights. That was not the Framers’ intent . . . and a questionable value to boot. How seriously should we understand him?

But he is where he is, writing and talking with a pomp that is destined to be abandoned.

Dean Jeremy M. Miller
American International School of Law

By Jeremy M. Miller on 2012 07 27, 6:23 pm CDT

@33 - I agree, but I don’t think it will be that blatant, and here’s why: Even usurpers crave legitimacy.  Whether it’s found in stretched judicial logic, or carving out the name of the last ruler from ancient monuments. 

I think what you’re describing has already happened and is happening.  It’s just… artful and (sometimes) subtle.  And then sometimes you have Bush v. Gore and Citizens United.

By Another Andy on 2012 07 27, 6:49 pm CDT

Well know:

It’s cruel AND unusual punishment.  Hanging is cruel, it certainly is not “unusual” since it’s been happening for hundreds and hundreds of years. The framers did not say hanging.  They could have said hanging and did not do.  What does that mean under rules of construction all you smart and “political” lawyers our there.  Could it be “the founders” did not say it bc they did not want to ham-string future generations with limited language and were praying to God (well, in church at least) that we would be smart enough to figure it out - all by ourselves without the governement telling us what to do.  “In God we trust.” 

Could it be that the “Founders”  expected us to progress and gave us a “living document” to work with.  Nah, living document is just a simple metaphor to be tossed away like the bath water - lets leave the baby though.  And, please, don’t bring up abortion, or “pro-life” or “pro-choice” or the other flavor of the week to describe it. 

But, since I did, what will the Court do with the lawsuits under the Health Care bill by Wheaton College and Catholic University that say you can not make us support abortion, since it violates our religous liberty.  Actually, I thought (and told) my students that is why people came to the USA - so they could worship as they saw fit.  Can we at least agree on that???     

And, sorry, Plato was a philospher (who acutally thought the world was flat BTW) - not a Supreme Court justise.  A supreme court justice who clearly and certainly recognizes he has a place in our “system of government” , is not a king, or a peasant - and does his job, interprets what he reads. 

It seems to me that Scalia biggest failing is that he has power.  And you know what they say, knowledge is power.

By Robert Paul Norman on 2012 07 27, 7:28 pm CDT

Charles Victor Szasz, is there a Question in there?

By Doodle Dandy on 2012 07 27, 7:32 pm CDT

no.  but there does appear to be a moment of stunned silence (or everyone is taking Friday off).

By Robert Paul Norman on 2012 07 27, 8:21 pm CDT

@37 You may be correct, but even if the usurper craves legitimacy, it does not have to come from having a legal system that ignores reality.  Until Draco attempted to legitimize his rule through codified laws, nobody questioned the arbitrary exercise of power by those who had it.  If the leader(s) used their power beyond the acceptable limits, the remedy was clear, remove the leader(s) or accept their version of the law.  As Thucydides explained two hundred years later, the strong do as they will and the weak suffer what they must.

Hiding the arbitrariness of our legal jurisprudence by claiming that there is some underlying set of limiting principles that can be changed by whoever is in power wastes resources on a non-issue..  Your citation of Bush v. Gore is a great example.  I have yet to find a person with a strong opinion about the result that was strongly in favour of the other candidate.  The only legitimate analysis that I have seen is that the Supreme Court had to hear the case because the underlying Florida politics threatened to undermine Federal Authority.  Had a different faction had control, Gore might have prevailed, but the important thing is that Federal Power was maintained. 

When “they” take over, maintaining Federal Power will not require strained logic.

By Charles Victor Szasz on 2012 07 27, 8:35 pm CDT

I thought Gore decided not to ask for a recount, showing respect (and honor) for the rule of law.  Not to mention the express limitation of the Federal governement.

Looks like I have to read that opinion again.

By Robert Paul Norman on 2012 07 27, 8:51 pm CDT

And who wrote that one.  Someone from the “right” no doubt.

By Robert Paul Norman on 2012 07 27, 8:52 pm CDT

Or i should say - decided to let the emergency stay by the The Court remain in place without further “litigation.”  Or not continue with the recount.

By Robert Paul Norman on 2012 07 27, 9:34 pm CDT

Just curious.

If the Constitution declared that Oval Office must always have a “blue” carpet, then how does an advocate of the Living Constitution discern its meaning? 

If James Madison, Ben Franklin, Alexander Hamilton, John Jay, et al. were all shown a cyan-colored carpet, and all four men wrinkled their nose and groaned “ick,” then how does the fact that our conception of blue now includes cyan—how does that mean that cyan was something agreed to two-hundred years ago?

When does “cyan” come to mean blue? Is it when fifty-one out of hundred law professors say so? Is it when two out three citizens say so?

By LexLoci on 2012 07 27, 10:33 pm CDT

Was it Tom Hanks that said “smart as is as smart as does.”  Oh no, it was stupid is as stupid does wasn’t it.

One more time, the court interprets laws.  That is there role.  If you want to change that roll - go for it.  My son (when he was in high school) suggested this in his history class as the last amendment to the constiution.  “All statutes have to be limited to the same number of pages as the constitution.” 

That way, “living or dead” - at least you could read through it without needing 100 law professors in attendance to figure it out. 

It’s the flexibility - something completely absent these days - that encourages compromise.  That must be why Romney has a blue tie on - to match the cyan rug. Right.

Two to beam up scottie.

By Robert Paul Norman on 2012 07 27, 10:56 pm CDT

@47 LexLoci

    Under the traditionalist view, Blue, as used in 1789, would represent the perception of a number of colors without a specific definition.  Therefore, it could include “cyan” but would probably not include “red” or “yellow”. 
    Under the living/breathing constitution, Blue should currently should refer to light in the visible portion of spectrum with short wavelength, approximately 475 nanometers, and would not include cyan.  If it is politically incorrect to limit the definition of “blue” to a single color, then the constitution would expand to include other nontraditional colors. 

    Once “they” take over, we won’t have to pretend that language creates any limitations.

By Charles Victor Szasz on 2012 07 27, 11:13 pm CDT

I think you have those exactly opposite.

By Another Andy on 2012 07 27, 11:16 pm CDT

If you want my opinion—and as you might have guessed, I’m going to provide it anyway—here’s how the “cyan” hypothetical would shake out.

Honest Originalist:
“We can’t know what colour was intended.  There is no specified colour swatch in the text, and there was disagreement among the Founders are to what ‘cyan’ was.  But we know it’s not red, yellow, orange, or purple.  Anything outside of that might have at least pleased *some* of the Founders, and that’s about the best we can do since we can’t know exactly what was intended.”

“I like this colour, and my version of what is ‘cyan’ is better.  Here are a few examples of people from the time period calling this ‘cyan.’  Ignore all of the other examples from the time period calling other shades ‘cyan.’  Only the ones that support the conclusion that I want matter.”

Livebreathingalist (work with me here, this ain’t easy):
“Because the text provides no specified colour swatch, we should not be bound by the original authors’ opinion on what ‘cyan’ was.  Perceptions of fashions and what colour is called what change over time.  So any hue that could reasonably be called ‘cyan’ by modern standards will suffice.”

By Another Andy on 2012 07 27, 11:38 pm CDT

Comment removed by moderator.

By Tom Youngjohn on 2012 07 28, 4:38 am CDT

I’d delete that last use of the word “itself.”

By Tom Youngjohn on 2012 07 28, 4:40 am CDT

HMM - corporations are “persons” not PEOPLE. 
Seperation of Power, Seperation of Branches (? its early)  AND

Seperation of Church and State, thank “heavens.”  Thus, “people” can be Buddhists, Taoists, Muslims, Christians, Jews - and the Country/State does not have a “religion” just many people that may practice however they see fit. 

I am so glad I watched the Olympics last nigt and left my iPhone in the office with “these” comments.  Sorry, have to go figure out what CYAN is!!!

By Robert Paul Norman on 2012 07 28, 3:17 pm CDT

Actually Judge Scalia’s works are probably instructive for advocates.  He was a good lawyer and a good advocate.  He’s a bad judge, because he’s a political judge.  He engages in partisan politics while he sits on the bench and participates in cases in which organizations to which he belongs are parties or have entered briefs as amicus curiae.  It’s my understanding Justice Scalia is a life member of the National Rifle Association which is a political lobbying organization.  Yet he wrote the decision in Heller in which that organzation was amicus.  That is a violation of the rules of judicial conduct.  Judges are not supposed to engage in politics.  They are also supposed to be open minded and not use the bench to force their political preferences on everyone else.  That cuts both ways.  As to Scalia’s intellect, Mr. Dandy is right, Cardozo or Holmes or for that matter Frankfurter could out write Scalia or any other current justice.

By George Sly on 2012 07 28, 6:37 pm CDT

Comment removed by moderator.

By Tom Youngjohn on 2012 07 28, 8:52 pm CDT

Here is the post I hoped would not get deleted for being off topic. This should have been #54. Sigh. I do this kind of thing way too often.

Mr. Norman, you wrote, in part: “corporations are ‘persons’ not PEOPLE”.

Well, for me, corporations are both the ‘personification’ of the wealthy’s greed, and the greedy’s wealth. If you’re still reading, I’ll explain. Corporation’s goal is to make money for shareholders, thus they “personify” greed. At the same time, corporations’ shares are fungible, thus they “personify” wealth. But they do so through a legal fiction designed to cloak the eyes of justice, or actually, the eyes of our Justices, who, with eyes closed, determined that the Constitution protects their rights of these “persons” as well as our own.

By Tom Youngjohn on 2012 07 28, 8:57 pm CDT

Dang. “protects the rights…”

By Tom Youngjohn on 2012 07 28, 8:57 pm CDT

It is not greed to make a profit.  Like it is not greed to expect to get paid for your job or your work. 

The owner of Wal-Mart (a “people”) makes a LOT MORE MONEY than, Wal-Mart, the corporation - one of many corporations he is involved in or one of many corporation he might even “own.”

My point was a simple legal one.  A person is a legal term.  But, people is/are also a legal term.  For instance, a corporation can be sued, but since a “corp” is a fiction it can not feel emotional distress or receive emotional distress damages.  Obviously, people can feel that and receive those damages. 

Justices are not blinded by that simply legal construction.

I am now turning off the notify before CYAN comes up again.

By Robert Paul Norman on 2012 07 28, 10:29 pm CDT

These deletions were not off topic, but I had copies saved and posted them on my Facebook page, prefaced by who deleted them from where. The question for history is not “Were you a corporate tool”“. No, the question for history is, as a Moderator did you promote the exchange of on-topic ideas, or did you try to inhibit such an exchange of on-topic ideas.

I got an A+ in my law school Corporations class so I think I can recognize the difference between a useful, if fanciful contribution, and an off topic post. As you deleted these without warning, and probably this one too, I will continue to copy my important posts, including this one, to my Facebook page.

You know, it’s funny. The rule in law school was that you could not talk about grades. You know why that is funny? Because you Can talk about what law school you went to. This suggests that this rule came down from on high, from the elite law schools, and BigLaw, who don’t care what grades you earned, just what law school you went to. Burn my posts away, Fearless ABA Moderator Lee Rawles. Burn them away. They will all go to Facebook now.

Banning me is you next option. I guess you can do that. So be it. But I’ll have you know I’m pretty good on appeals.

By Tom Youngjohn on 2012 08 02, 4:37 am CDT

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