Law is Politics

The legal system makes a lot more sense when you realize that it’s all politics.

There are those who insist that the law is absolute; that there is only one interpretation of it; and that only crazy radical liberals engage in “judicial activism.”

But the bottom line is that the law is whatever judges say it is.

Every judge has their own opinion as to what the “original intent” of the law was. If everyone agreed on what the “original intent” was, we wouldn’t need judges.

Even the Founders disagreed over the wording. The scales-personal-injury-lowConstitution was written to be specifically vague in parts because that was the only way they could get it passed.

You know — politics.

Within a few years of its passage, there were cases before the Supreme Court to interpret the Constitution’s meaning. The very Founders who wrote the damn thing argued before the Court as to how it should be interpreted.

Whenever anyone says there is only one “original intent” they always amazingly also know exactly what it is and — even more amazingly — it always matches what they already believed. (Sort of like religious nuts who are convinced there is only one interpretation of the Bible and it’s always the same thing as their own.)

And the meanings of words change over time. “Cruel and unusual punishment” does not mean the same thing in the 21st Century as it did in the 18th. The 14th amendment gives rights to “people” but at the time it was written, it did not include women or gays (and barely included blacks). Meanings change. Society changes.

Conservative judges interpret the Constitution just as much as liberal judges do — the difference is that liberal judges tend to be more honest about it. Or maybe the conservatives ones are just deluded, like Scalia was, that he had some great “insight” into the Founders’ desires, like he was an avatar to the gods. It was the conservative justices who reinterpreted the 2nd amendment to turn it into a personal right after 200 years. It was the conservative judges who decided that corporations were “people” and money was “speech.” And a new Court could turn around and say “nope” and change it back, using the exact same words in the Constitution.

Politics.

I know some people want the law to be like a science, where you can do an experiment or do some research and know the answer, but it isn’t. It’s politics. It’s written by politicians. It’s judged by people who are elected (and are therefore politicians) or who have been appointed by politicians. The judges don’t all agree, just like politicians don’t agree.

And most of them (if they aren’t deluded) will admit that the Constitution is not a religious document written by gods; it’s a political document written by a bunch of politicians.

 

Editorial cartoon: Wish Fulfillment

 

Tom the Dancing Bug 1277 scalia - beyond the grave

Ruben Bolling

Why you should be happy Scalia’s gone

No, I am not celebrating Scalia’s death. I am celebrating him not being on the Court any more. I am happy that he can no longer cause harm. I would be just as happy had he merely resigned. CbIYxk6UAAAdFXX

Much of the problem with Scalia concerned his religious beliefs. He believed in a literal devil — that Satan was coercing other people to support gay rights and liberal politics. Since Scalia saw himself as doing God’s work, therefore anyone who held a different position from him was not only wrong, but evil. That is a dangerous and frankly unAmerican view for someone on the Supreme Court to have.

Intertwined with that was his conviction that not only should we consider what the Founding Fathers wanted when they wrote the Constitution, but his belief that he, and he alone, knew exactly what that was — and, amazingly, it always fit perfectly with his own views!

I’ve ranted against this kind of Constitutional fundamentalism before, pointing out that writing from the time clearly indicates that even the Founding Fathers disagreed. Hell, within a few years there were cases before the Supreme Court to determine the meaning of the Constitution because they couldn’t agree.

This attitude of “there is only one interpretation of the Constitution and it’s mine” falls squarely into his religious belief again, since he had the same view of the Bible.

And then for him to pretend that politics had nothing to do with his decisions! He’d claim to care about “state’s rights” unless a state wanted to manage its own electoral process (“but that could allow Gore to be President and we can’t have that!”). He’d say “we can’t overturn the decisions made by a democratically elected legislature” while striking down the Voting Rights Act passed by a huge majority. The only consistent thing about his decisions were his arrogant opinions that insulted everyone who disagreed with him.

But mostly I loathed the man for being so evil, so hateful of anyone different from him — for comparing gays to child molesters and saying blacks should attend lesser colleges because they’re not as smart as white people; for not caring if innocent people get executed; for arguing that discrimination against women was perfectly fine; for saying the sort of thing that, had he been head of the KKK (where he’d fit right in), you would all be saying “I’m glad he’s gone.”

Scalia is one of the main reasons that trust in the Supreme Court has dropped over the years. We used to hold our Court in high esteem, because they were the best and brightest, separate from politics, incorruptible. Then Scalia came along, thumbed his nose at Court ethics (claiming that he didn’t have to follow the same rules other federal judges follow concerning conflict-of-interest laws, “gifts” from people who had cases before the Court, and so on), insulted the other judges in his opinions, ranted publicly about “homosexual agendas” while commenting about upcoming cases, pushed the court to make political decisions like Bush v. Gore, and otherwise did everything he could to ruin hundreds of years of the Court’s image.

Damn right I’m glad he’s gone.

 

 

Not Mourning Scalia

Do I need to remind people of the terrible, hateful, and racist things this man has said over the years about women, gays, blacks, minorities, non-Christians?antonin-scalia-12-16-15-1.jpeg Not to mention the power of the government to screw over your Constitutional rights.

If he were the head of the KKK you’d all be happy he’s gone. But in fact, with the same views, he was instead given power to DO things about his bigotry and hatred. The fact that he had power is MORE reason to be glad he’s gone.

No, I am not going to pretend to be sorry for his passing just because he was on the Supreme Court. He was a horrible man and the world is a better place without him and the harm he caused.

Supreme Court: No more Gay Marriage

The United States Supreme Court, in its second attempt to make Scalia’s head explode in two days, has discovered that gays and lesbians are “people” and therefore protected by the 14th Amendment’s equal protection clause which prohibits discrimination against any person.mawage

So it’s official. No more gay marriage in America. From now on, there are only marriages.

Religious conservatives across the country are now screaming about “judicial activism” and claiming that the court ruled against the will of the people, completely ignoring the fact that the majority of Americans support marriage equality these days.  (Hey kids! Today’s challenge: Find a conservative that complained about the Citizen’s United decision which definitely went against what the majority of Americans wanted!)

Half of the fun of decisions like this are reading Scalia’s dissents, which contradict previous decisions he’s made and read less like a learned treatise from a Supreme Court Justice and more like your drunk uncle at Thanksgiving: “Who ever thought that intimacy and spirituality (whatever that means) were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.”

Pure comedy gold. And so, so satisfying to those of us who love to see this freedom-hater lose.

So now I can stop posting “such-and-such state enters the 21st century” whenever a new state embraced marriage equality. And I, for one, am thrilled.

Virginia joins the 21st Century (Again)

Nice to see my old home state of Virginia discovering that marriage should not be a privilege for heterosexuals.  100% of all the cases that have come before the courts have decided similarly, and it’s really taking the wind out of those who want to discriminate.  valovers

I’m happy that Virginia’s Attorney General, like the one we have here in Pennsylvania, refused to defend a law he knew was unconstitutional.  And better yet that the federal courts upheld the ruling of a lower court earlier this year.

What is even better is how the courts are using reactionary Supreme Court “Justice” Scalia’s own words against him.  Scalia, who literally believes any decision that goes against him is because the actual Devil is behind it, argued in a previous decision that struck down laws that discriminated against gays and lesbians based on their sex practices that logically, if you agree with that, then you’d have to allow gay marriage too!  He wrote that to shock people into realizing how terrible it was that we no longer discriminated, but many current judges have used those very words to agree with him and strike down anti-gay marriage laws.   (Scalia also said that this is a decision that should be left to the majority to decide democratically, but he has been very silent now that the majority of Americans are in favor of gay marriage.)

“Over the decades, the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms,” wrote one of the judges in the majority.  This is something some people just cannot abide.

The dissenting judge (appointed by GWB) once more made the ridiculous claim that the government has the duty to prohibit same sex marriages because they do not promote society’s goal of procreation.  You know — the argument that gets you laughed at when said in intelligent company.

Supreme Court: Corporations over women

A few days ago, we learned that dead people have more rights than women.  Now we learn that corporations have more rights than women, too.

As you probably know, Hobby Lobby won their ridiculous case (I wrote about that here, here, and here months ago).   While I am sad, I am not shocked.

I remember being shocked in law school when I read an opinion from Scalia that dealt with a similar issue, as to whether an employer could refuse to provide contraception for women (including abortions) but still provide it for men, and Scalicorporations-over-wethepeoplea’s logic was that the law did not discriminate against women — it merely discriminated against pregnant people.

Later, he ruled that the 14th Amendment which says that there can be no discrimination against “people” didn’t apply to women who wanted to be treated as equals in the military. “That’s different,” he said.

So this is nothing new. Women, in Scalia’s mind, aren’t really “people.”

This is what happens when you make corporations into people. They start having religions and then want to force everyone else to live by their religious laws.

So now religious law is more important than the secular law — but only for employers.  Got that?

Why do these people get to decide how to spend my money?  Health benefits belong to me, just like my salary.  Why does my boss get to decide how I want to use them?  Can my boss dock my salary if I decide to spend it on things he doesn’t like?

That’s the bottom line many people don’t get.  This is about who decides, and once more the Supreme Court has ruled that the power in this country belongs with the corporations and 1%, not with “we, the people.”

I see that the anti-gay religious folks are thrilled. After all, if the religion of the employer is more important than the law, then clearly employers can now discriminate against gays and lesbians if it offends their “deeply held religious views.”

And why stop there? I’m sure there are religious employers whose religion tells them they can discriminate against Jews, or women, or blacks.

Heck, there are enough gods out there that you can easily find one to worship that will allow you to ignore just about every law you want.

So what do we do?  How can we overturn this decision?

Well, you can’t.

What you can do is vote.  Vote in every election, not just the Presidential one.  Fill our government with Democrats who will put into place a single-payer system that we should have done in the first place.  That will solve many problems as well as make this decision completely irrelevant and moot.