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Merged Scalia is dead

NoahFence said:
... adorable.
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Suddenly said:
That's the problem with original intent. There isn't just one founder. Or two. It is sort of an amorphous group and it's too easy to pick and choose, and that's before we get into revisionists with axes to grind.
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I agree. And that's why I think that textual originalism is mostly just a cover. Even if unconsciously so. For Scalia, so he could attempt to force his views on hundreds of millions of people. For things like gay rights and religion, though, he mostly failed, thankfully.
 
Creationists and Nazis and Scalia was murdered...by Obama no less.

I think this thread has achieved transcendence.

Murdered? What, did someone sneak up behind this 79 year old fatso and go "Boo!"?
 
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Beerina said:
Creationists and Nazis and Scalia was murdered...by Obama no less.

I think this thread has achieved transcendence.
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LOL.

(And to be clear, I LOL not to mock you but because I think your post is funny and accurate)
 
It's worth noting that a few legal scholars have pointed out when his textual originalism was conveniently ignored given the issue. I'll try to find the essay I read a few years ago but in the meantime:

Justice Scalia’s ‘Originalist’ Hypocrisy
“In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation,” Scalia said in an interview with the legal magazine California Lawyer.

“So does that mean that we’ve gone off in error by applying the Fourteenth Amendment to both? Yes, yes. Sorry, to tell you that.”

However, if the “original intent” of the amendment’s drafters was so determinative – that the Fourteenth Amendment supposedly was only meant to apply to black men at the end of slavery – it might be safe to assume that the drafters weren’t thinking about protecting a white man like George W. Bush from possibly losing an election in Florida in 2000.

Yet, the Fourteenth Amendment was precisely what Scalia and four other partisan Republicans on the Supreme Court cited to justify shutting down the Florida recount and handing the White House to Bush, despite the fact that he lost the national popular vote and apparently would have come out on the short end of the Florida recount if all legally cast ballots were counted.
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Bottom line, there are many examples where:
In other words, Scalia and other right-wing justices operate with a situational ethic when it comes to “originalism” and “strict construction.” If their partisan and ideological interests require the abandoning of those precepts, the principles are dumped overboard.
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Desert Fox said:
This is another good one out of Scalia:
“There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”
http://news.lawreader.com/2008/08/2...-they-believe-justice-should-trump-procedure/
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It is a bit back upthread, but given the "once convicted, always convicted" post a bit ago I'd like to point out that this statement by Scalia is accurate. There is no federal Constitutional right to have a case re-opened based solely on newly discovered evidence of innocence. It requires a showing that the evidence was withheld by the state (Brady material) or that the evidence could have been found before trial by defense counsel had defense counsel performed a sufficient investigation (ineffective assistance of counsel).

Some states may allow for such challenges outside of these two circumstances, but the feds haven't. Our legal tradition has given a massive degree of deference to the fact finding of a jury, as almost all challenges to a verdict, be it a direct appeal or collateral attack such as a petition for a writ of habeas corpus, are based on legal questions only, not factual questions.
 
Skeptic Ginger said:
It's worth noting that a few legal scholars have pointed out when his textual originalism was conveniently ignored given the issue. I'll try to find the essay I read a few years ago but in the meantime:

Justice Scalia’s ‘Originalist’ Hypocrisy

Bottom line, there are many examples where:
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Tbh, I had no idea that the court used the Equal Protection Clause of 14th Amendment as cover for that decision.

Though I am not surprised that those evil, lying, hypocritical scumbags used it as cover even though there is nothing that says they should have jurisdiction over presidential elections. Originalism be damned, they wanted a Republican President. But when it comes to things like gay rights, we must adhere to originalism. What evil pieces of crap. I hate them so much.
 
Suddenly said:
It is a bit back upthread, but given the "once convicted, always convicted" post a bit ago I'd like to point out that this statement by Scalia is accurate. There is no federal Constitutional right to have a case re-opened based solely on newly discovered evidence of innocence. It requires a showing that the evidence was withheld by the state (Brady material) or that the evidence could have been found before trial by defense counsel had defense counsel performed a sufficient investigation (ineffective assistance of counsel).

Some states may allow for such challenges outside of these two circumstances, but the feds haven't. Our legal tradition has given a massive degree of deference to the fact finding of a jury, as almost all challenges to a verdict, be it a direct appeal or collateral attack such as a petition for a writ of habeas corpus, are based on legal questions only, not factual questions.
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I think others have done a decent job of posting information that Scalia was not a strict "Originalist." He seemed to allow his own goals to dictate where he wanted to go with a decision.

As such, I would argue that the spirit of the Constitution and Bill of Rights argues that innocence should be an absolute defense. The Bill of Rights was written to make sure that the legal system is fair.
 
Desert Fox said:
As such, I would argue that the spirit of the Constitution and Bill of Rights argues that innocence should be an absolute defense.
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I suspect it never even occurred to the parties framing those documents that they needed to write that down...
 
Garrison 2015 said:
I suspect it never even occurred to the parties framing those documents that they needed to write that down...
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As I recall, there were people against the Bill of Rights because they thought it would imply that those are the only rights protected.
 
Desert Fox said:
As such, I would argue that the spirit of the Constitution and Bill of Rights argues that innocence should be an absolute defense. The Bill of Rights was written to make sure that the legal system is fair.
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Argue all you want, it doesn't change the facts on the ground, and those are as Scalia described.

Maybe they shouldn't be, but they are. Absent some new federal laws, or a new landmark court case, that is how they will be.

Scalia would agree as to fairness. Our criminal justice system was designed for the purpose of making trials fair, not necessarily built around finding the truth. These are slightly different things. As a result, we treat a jury trial with a lot of finality. You can argue afterward that the trial wasn't fair... just not so much that it wasn't accurate.
 
GlennB said:
If a President were faced with the death/retirement of a number of SCOTUS judges during his terms in office and had Congress behind him, couldn't he load the SCOTUS with like-minded judges and skew it for a generation? Or would that be so naughty it would be beyond the pale?
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Of course, FDR did that and appointed eight (*) justices. But only two of them served over 30 years.

(*) really only 7 seats, as Byrnes served only a year and FDR then appointed Rutledge as his replacement.
 
Suddenly said:
Argue all you want, it doesn't change the facts on the ground, and those are as Scalia described.

Maybe they shouldn't be, but they are. Absent some new federal laws, or a new landmark court case, that is how they will be.

Scalia would agree as to fairness. Our criminal justice system was designed for the purpose of making trials fair, not necessarily built around finding the truth. These are slightly different things. As a result, we treat a jury trial with a lot of finality. You can argue afterward that the trial wasn't fair... just not so much that it wasn't accurate.
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If he actually operated as a strict originality, that might have merit. The trouble is that he did not.
 
Desert Fox said:
If he actually operated as a strict originality, that might have merit. The trouble is that he did not.
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This makes no sense.

As it is now, factual arguments can not be raised in post conviction proceedings with a few small exceptions. Scalia wasn't making some ground breaking pronouncement, he was just putting in a few words how things have been for decades upon decades. It was like that before he used those words, and it is like that now.

Has zero to do with his faithfulness to his preferred school of jurisprudence. He might as well have been observing that the week has seven days...
 
I know we have some lawyers here, I'm not sure if they're criminal lawyers, but I think the issue of overturning convictions is getting confused. It is not true that when new evidence surfaces that would exonerate a convicted person, it is not actionable under federal law. It is not admissible under the appeal process, but the new evidence can be presented to a judge with the request he order a new trial "in the interests of justice." People convicted of crimes get convictions set aside all the time; it is not because of procedural issues.

This is from the Cornell University legal site, Federal Rules of Criminal Procedure - Post-Conviction Procedures:
Rule 33. New Trial

(a) Defendant's Motion. Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment.

(b) Time to File.

(1) Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case. Link
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newyorkguy said:
I know we have some lawyers here, I'm not sure if they're criminal lawyers, but I think the issue of overturning convictions is getting confused. It is not true that when new evidence surfaces that would exonerate a convicted person, it is not actionable under federal law. It is not admissible under the appeal process, but the new evidence can be presented to a judge with the request he order a new trial "in the interests of justice." People convicted of crimes get convictions set aside all the time; it is not because of procedural issues.
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There is no constitutional right to have the evidence heard. I've probably been imprecise with my wording thus the possible confusion, but that was Scalia's point.

There is, in federal court and those states with a similar rule 33, some statutory right via motion for new trial.
 
I don't see where the Constitution bars a retrial based on new evidence, either. What was Scalia's point, exactly, what was the context?
 
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