Scalia Publicly Rejects the Use of the 14th Amendment to Bar Discrimination Against Women and Gays

While the legal profession debates the propriety of his decision to participate in the educational sessions for conservative new members of Congress, Associate Justice Antonin Scalia is also causing a stir over his public statement that the 14th Amendment does not prohibit discrimination against women or gays.

Scalia’s statement came in an interview with California Lawyer magazine. Scalia stated “You know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly, the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”

Once again, this statement is not a violation of judicial ethics but rather a violation of a core principle of judicial self-restraint. In the past, justices avoided public appearances beyond occasional law school commencements and ceremonial appearances. That was before the advent of the celebrity justice where members increasingly appear in high profile events. I take a highly conservative view of such appearances. I believe it undermines the integrity of the court for justices to be holding forth on their personal views in interviews and conferences. They are given one of nine unique positions that require a degree personal discipline in public appearance and, yes, insularity. As noted in this column, I admired John Paul Stevens for his practice of having his opinions speak for themselves. Scalia has helped inspire a new model of the celebrity justice that appears to appeal to many of his colleagues. These interviews and speeches tend to be self-aggrandizing exercises and not only do not do justice to the Court but to Scalia himself. He is certainly not alone in yielding to the temptation to appear in public. Both liberal and conservative justices have increasingly made controversial appearances.

Scalia’s views on gender discrimination are well-known. However, such arguments should be precedent not personality driven. Scalia is rightfully viewed as an intellectual leader of the conservative wing of the Court. If there is anyone who could allow his opinions to speak well for himself, it is Justice Scalia. He clearly enjoys exchanges with students and lawyers. He is also one of the most entertaining and dynamic members of the Court. I truly like that about him. However, this is a job that requires the small sacrifice in one’s public persona. Scalia’s legacy would be better served with less of the justice in the public arena.

Source: Politics Daily

Jonathan Turley

122 thoughts on “Scalia Publicly Rejects the Use of the 14th Amendment to Bar Discrimination Against Women and Gays

  1. Isn’t it better to know that a Justice is personally biased, than to not know it?

    I think knowing the reality of any situation is preferable to not knowing it; in particular in this case, Scalia’s revelation could inform a lawyer appearing before him to ensure his arguments would not fall upon deaf ears. Perhaps he could bolster his justifications from more angles, knowing how Scalia feels about the 14th Amendment.

  2. Scalia is an affront to the very concepts of fairness and equality embodied in this country’s founding. Listening to his twisted world view over the years does provide a window on history though. It’s a little easier to see how judges over the centuries have used and misused their countries’ laws to enslave people, subvert justice and to justify all manner of atrocities. The thing that makes Scalia stand out is the enormity of his ego and incredible arrogance.

  3. This man could be the worst SCOTUS judge in US history and Tootie’s approval of him only proves the point.

  4. Question: given that women could not vote when the Amendment was adopted, doesn’t his view make sense (with respect to women)?

  5. Scalia is more jokester than jurist; more showman than scholar; and more iconoclast than intellectual. He likes himself way too much, and always enjoys looking for ways to see on display what he likes the most. He is a literalist with a logical veneer, and a detriment to the tradition of a court once valued for its emphasis on — and commitment to — the individual rights of every-day Americans. I call him the “anti-Chancellor” for his stubborn campaign for form over substance.

  6. rcampbell and Mike S. and Buddha are all correct. I’ve said this on an earlier thread, but Justice Scalia claims that the Constitution doesn’t protect women means that the Constitution does not protect more than one half of the country. I guess if you are a man, that isn’t a worrty. At least in Justice Scalia’s mind. Does Justice Scalia have daughters that don’t believe that a man is dominant over a woman as he does? This originalism notion didn’t get in his way when he declared corporations are people when it comes to election money. This originalism didn’t get in his way when Bush v Gore was decided. If the 14th Amendment doesn’t protect everyone, why should women be required to pay taxes?

  7. Like it or not, Justice Scalia, in this instance is correct when he said “the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t”.

    The Court has held on numerous occasions that laws that discriminate on sexual grounds are subject to higher scrutiny, but if they serve a legitimate government interest, they can be permitted.

    The gender preference in Schlesinger v. Ballard certainly served a legitimate government interest, and women were the beneficiary.

    I understand how Scalia’s comment can be seen as rash, but it is no doubt technically correct. If he were to have said that the Constitution prohibits discrimination in all cases, he would be going against many previous Court decisions.

    Maybe he made that statement just to see how it gets spun. :)

  8. Mike:

    Prove how the 14th bars discrimination against women.

    Oh wait. First prove the 14th was legally approved.

    LOL

  9. Scalia and Christie(my state governor)have a lot in common.Arrogant, Could care less what you think about them,They can do no wrong etc,etc.

  10. BBB,
    Scalia stated that if the States want to discriminate against women, that is ok. Taking that logic a step further, Blouise or Swarthmore Mom could be prevented in their respective states from the ability to work in specific professions and Scalia would be ok with that. How does that make him technically correct. How can you possibly define “persons” as it was defined in the 1800’s today in 2011? If blacks are citizens under the 14th’s definition of persons, according to Scalia, why aren’t women? Or is Scalia also suggesting that racial discrimation should be allowed if the States are ok with it?

  11. We don’t want the people to know our personal opinions about these matter, then the stupid peons below who we rule over with an iron fist might learn about our lies, deceits, and trickeriers and hold us accountable.

    That simply won’t do.

  12. raff:
    “Or is Scalia also suggesting that racial discrimation should be allowed if the States are ok with it?”

    Sounds that way to me.

  13. rafflaw,

    “Scalia stated that if the States want to discriminate against women, that is ok.”

    If they can establish a legitimate government interest for doing so, that statement would be correct. To say that is not would be to ignore precedent. Scalia didn’t say that the States can discriminate against women any time they want, for any reason they want.

    Let’s look at a simple case that would restrict the use of some public property. Men can’t enter a public restroom so identified, and women are restricted from entering the one designated for men. Is this, in the strictest sense, a discrimination on the basis of gender? Yes. Does the government have a legitimate interest in doing so? Yes again.

    In my previous post I identified Schlesinger v. Ballard.
    http://supreme.justia.com/us/419/498/case.html

    I think it would be a good opinion for you to read.

  14. “Amendment 14 – Citizenship Rights

    1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.”

    Note that the Amendment in questions says “All persons”.

    That means “all persons” – including women, people of color and homosexuals – not just whomever Scalia deems fit for the equal protection of law. Which to be clear – Scalia would only extend that right to white Christian men who are property owners. If that’s what the adopters of the 14th Amendment had meant, they wouldn’t have used the words “all persons” and “citizens of the United States”.

    Words have meaning.

    The relevant meaning of the word “all” is “every member or individual component of”.

    Not just who that evil bastard selects.

    “All” is the ultimate inclusive modifier.

  15. RE: Elaine’s video clip.

    Ms. Stahl asked the wrong questions and he let her be confused. LOL

    Very funny stuff.

    The question about Abu Ghraib is one about the Geneva Conventions and the UCMJ, not the US constitution (8th amendment). The Judge shouldn’t expect a leftist talking head to understand this.

    The judge also appears to be quite right.

    Punishment is about the sentence given, or how the sentence is structured. It is not about abuse and assualt by cops, guards, or wardens (these are already illegal). The illegal acts by officials holding prisoners is not a part of the punishment. Capture of “soldiers” is not a sentence (punishment) given by a court. It is a result of war.

    Lyndie English was not exacting a lawful (but cruel) sentence on the Iraqi prisoners. She was being cruel OUTSIDE of any lawful military actions such as detainment, holding, restrictions on liberty, etc.).

    And this, I believe, is what Scalia was pointing out. But Ms. Stahl is not so bright and being a leftist, likely not so up on the Constitution. He needs to stay off of TV news shows. These people tend to be imbeciles. Attractive, but dense. Mild mannered and polite, but shallow thinkers.

    The judge should have some fun in his later years. I say go for it judge. Get an Xtra Normal account and let ‘er rip.

    You don’t need the imbecilic middlemen in the media to get your ideas out. Go viral and drive them nuts.

    http://www.xtranormal.com/index

  16. rafflaw,

    “Scalia stated that if the States want to discriminate against women, that is ok.”

    I should have taken the time to point this out before. That is not what Scalia said in the interview. That is what you interpreted him to have said. As BIL pointed out above “Words have meaning”. I think it would be a good idea to quote what he actually said in the interview.

    Would that make me a textualist? :)

  17. Tootie,

    What part of the Supremacy Clause are you having trouble with?

    “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”

    Is the Geneva Convention a treaty?
    Is the UCMJ part of the laws created in pursuance of the Constitution?

    The place where Scalia was toying with the interviewer had to do with the difference between punishment meted out by the court (cruel and unusual punishment) vs. the actions of someone taken into custody by law enforcement or the military.

  18. Tootie,

    The word punishment has more than one definition. The word doesn’t just refer to a “sentence” given to someone. Punishment can mean rough handling or mistreatment.

  19. Less a jester and more a buffoon, I can’t believe his arguments on this topic are even entertained. Colbert’s satire directly speaks to the man’s idiocy and lack of internally consistent logic.

  20. At least Scalia is keeping us questioning authority and thinking critically about the constitution.
    He is keeping constitutional law alive & people like Professor Turley in business.

  21. BBB,
    Here are Scalia’s words, ‘ “”If indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society,” he said. “If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.” ‘http://www.rawstory.com/rs/2011/01/scalia-no-protection-women-constitution/ Those words are plain and clear. If the legislature can decide that women should not be discrimated against, they can also decide to authorize discrimation, according to Justice Scalia’s logic.

  22. BBB,

    Alternately: If he’s saying the Constitution doesn’t protect women from being discriminated against that includes the idea that there’s nothing in the Constitution that protects women from being discriminated against by the states.

    One presumes if he thought the Constitution protected against state initiated discrimination he would have said something like “The Constitution protects women against discrimination from governments, but not private entities…” and then done his bit about legislation.

  23. Quoting the 14th A and saying “all persons” means “all,” is not persuasive to me. Consider that the 19th A was required to allow women to vote and the 26th A to allow 18, 19, and 20 year olds to vote. Were these groups not part of “all persons” before 1920 and 1971?

  24. rafflaw,

    “Those words are plain and clear. If the legislature can decide that women should not be discrimated against, they can also decide to authorize discrimation, according to Justice Scalia’s logic.”

    The statement is correct, and supported as evidenced by Court opinions. The important factor is that such discrimination is subject to heightened scrutiny and must serve a legitimate government interest.

    I fail to see why that concept is so difficult to understand given the identified restrictions placed on the discrimination.

  25. Gyges,

    Scalia didn’t say the Constitution does not protect women from discrimination, he said it doesn’t prohibit it. He is correct.

  26. If the Constitution was to prohibit any discrimination by gender, and that prohibition was incorporated into the states, any law that would prevent men from entering the ladies restroom (on public property) would be unconstitutional.

  27. BBB,

    How is prohibiting discrimination based on gender different than protecting a gender from discrimination?

    Also, this is the perfect example of “the exception proves the rule.” If you have to make an exception for “legitimate government interest,” that means that in all other cases it’s prohibited.

  28. mahtso,

    Only because some people are too stupid or too ideologically bound to understand the meaning of the word “all”. They have to have it forced upon them.

  29. Gyges,

    “How is prohibiting discrimination based on gender different than protecting a gender from discrimination?”

    Read Schlesinger v. Ballard.
    http://supreme.justia.com/us/419/498/case.html

    “Also, this is the perfect example of “the exception proves the rule.” If you have to make an exception for “legitimate government interest,” that means that in all other cases it’s prohibited.”

    That’s exactly why no blanket prohibition exists. If it was prohibited by the Constitution, not even a legitimitate government interest could penetrate that prohibition.

  30. BBB,

    “If it was prohibited by the Constitution, not even a legitimitate government interest could penetrate that prohibition.”

    You mean like “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;”

    Which is why you can incite to riot.

  31. Scalia is probably the finest legal mind on the court today with the exception of Roberts and Alito. Thomas rounds out the top 4.

  32. Gyges,

    “You mean like “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;”

    Exaclty. Congress is prohibited from making a law that would establish a national religion or give preferential treatment to one. It also prohibits them from creating a law that would prohibit the free exercise thereof. (To me, that would mean that they could not prohibit people from practicing their religion on public lands, as long as that practice did not interfere with the free practice of others.)

    “Which is why you can incite to riot.”

    I’m not sure what you intended by that statement.

  33. BBB,

    You don’t see the connection between the First Amendment, the fact that inciting a riot is a federal crime, and your statement that “If it was prohibited by the Constitution, not even a legitimitate government interest could penetrate that prohibition?”

    Let me help. Once more, with feeling

    ““Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;

    http://codes.lp.findlaw.com/uscode/18/I/102/2101

  34. Gyges,

    Thanks for taking the time to clarify your post.

    The short answer is that it’s a balancing act. The purpose of the law that makes it a crime to incite a riot is intended to protect the rights of others. It’s not the speech, but the imminent lawless acts that accompany the speech that are the focus of the law.

    Would you choose to have it be any other way?

    I wish the Supreme Court would not have denied cert in Rice v Palladin Press.

  35. BBB,

    You’re saying that Speech can be limited for legitimate government interests, even though it’s Constitutionally protected.

    Which sort of stands in contrast to “If it was prohibited by the Constitution, not even a legitimitate government interest could penetrate that prohibition.”

    Doesn’t it?

  36. Buddha Is Laughing,

    So, as the give and take between Gyges and BBB illustrates, a federal law that prohibits yelling fire in a crowded theater or one that makes it a crime to incite a riot, is unconstitutional? After all, “no law” means “no law.” And are 17 year-old citizens not part of “all persons?”

    Whether you (or I) like it or not, words used in laws and the Constitution are not always given their ordinary meanings.

  37. BBB,
    That is my point exactly. State legislatures could discriminate against women according to Scalia. Are women not persons under the Constitution? It the language of the 14th said citizens or persons who have the right to vote, Scalia might have a point, but it says persons.

  38. mahtso,

    Whether you like it or not, they often do mean their “ordinary” meaning. It’s not as if there is a huge debate in the English speaking world about the meaning of the word “all”. If you want to back that asshat Scalia, that’s your business, but you’re not too bright if you think there is wiggle room on the meaning of “all”.

    all \ˈȯl\, adj.,

    1 a : the whole amount, quantity, or extent of (needed all the courage they had)(sat up all night) b : as much as possible (spoke in all seriousness)

    2: every member or individual component of (all men will go) (all five children were present)

    3: the whole number or sum of (all the angles of a triangle are equal to two right angles)

    4: every (all manner of hardship)

    5: any whatever (beyond all doubt)

    6: nothing but : only: a : completely taken up with, given to, or absorbed by (became all attention) b : having or seeming to have (some physical feature) in conspicuous excess or prominence (all legs) c : paying full attention with (all ears)

    7 dialect : used up : entirely consumed —used especially of food and drink

    8: being more than one person or thing (who all is coming)

    By the construction of the sentence – “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” – the only appropriate meaning of the word “all” among all of its possible usages is 2: every member or individual component of.

    Whether you agree or not is irrelevant to the logic of the linguistic construction and the plain meaning of the word.

    What’s next? You want to argue about the meaning of “born”?

  39. BBB,

    O.k. so let’s see if I’m following you then:

    You offer as proof that the Constitution doesn’t prohibit state legislated discrimination the fact that there has been a judgment that allows it when there’s a legitimate state interest.

    As proof that this isn’t the exception proving the rule, you say that if it was prohibited there would be no way around that prohibition, even if there’s a legitimate state interest.

    You concede that sometimes even a blanket prohibition by the Constitution (No law abridging the right to free speech) can have exceptions for legitimate state interests.

    Right?

  40. rafflaw,

    Is the Nineteenth Amendment surplusage? Your interpretation of the Fourteenth would indicate that it must be. Why is it that over 50 years later an Amendment to the Constitution was required to ensure women the right of suffrage?

    See Minor v Happersett (1874)

  41. Gyges,

    “You offer as proof that the Constitution doesn’t prohibit state legislated discrimination the fact that there has been a judgment that allows it when there’s a legitimate state interest.”

    What judgment? What case are you talking about? A federal law has been created and is assumed to be constitutional until ruled otherwise, but I don’t know of a case challenging that law. (18 USC 2102)

  42. As I cannot find “autism” or “autistic person” anywhere mentioned in the Constitution, perhaps this thread will help clarify why I live my life in accord with the view in mind that, under law, I have no rights or privileges.

    That Colbert clip makes this clearer to me than any words I can imagine ever finding.

    If I have neither rights nor privileges, perhaps I will live longer than I would were to believe I were entitled to rights or privileges and so live as though I have them.

    In this society, I find I have only one right, the right to die; I prefer instead to cry.

    If my sense of law is based on “let right be done,” surely Scalia is my proper guide to right living without my having rights.

  43. BBB,

    Here ya go point by point.

    point 1: “The Court has held on numerous occasions that laws that discriminate on sexual grounds are subject to higher scrutiny, but if they serve a legitimate government interest, they can be permitted.

    The gender preference in Schlesinger v. Ballard certainly served a legitimate government interest, and women were the beneficiary.”

    point 2:

    “If the Constitution was to prohibit any discrimination by gender, and that prohibition was incorporated into the states, any law that would prevent men from entering the ladies restroom (on public property) would be unconstitutional.”

    point 3: “The purpose of the law that makes it a crime to incite a riot {me: Which limits speech, even though the first amendment prohibits the government from abridging the right to free speech} is intended to protect the rights of others. It’s not the speech, but the imminent lawless acts that accompany the speech that are the focus of the law.”

  44. My delusion detector also pointed me toward checking Book Finder for “The Standard Dictionary of Permanently Plain Meanings.”

    My delusion detector must be delusional, no such book found.

    Not even a dictionary of plain meanings of any sort; found one with plain, permanent pronunciations, though. Is “pronunciation” a synonym for “meaning”?

    What would it mean to be pronounced woman and husband?

    Perhaps I need a replacement delusion detector. Can’t afford a new one. Checked eBay for a used one, did not find any. Pity.

    I wonder if I am the only one looking for a replacement delusion detector…

  45. Gyges,

    “[T]he main purpose of such constitutional provisions is ‘to prevent all such previous restraints upon publications as had been practised by other governments,’ and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.”
    PATTERSON v. COLORADO (1907)

  46. BBB,

    I’m not arguing point three. I’m the one who brought it up after all.

    You’ve done diddly squat to reconcile points 2 and 3. You built your argument on something that you then admitted wasn’t the case.

    If you want to be intellectually honest you’ve either got to change your argument, show why the Constitution can make exceptions for legitimate government interests on the in one instance and not the other, or admit that point 1 and 2 aren’t as solid of proof as you thought.

    I’m open to any of the three.

  47. Gyges,

    I think the problem in our communication is that you don’t understand “heightened scutiny” and “legitimate public interest”. I made sure to point them out to rafflaw in an earlier comment.

    I don’t mean to be dismissive, but I don’t know what more you want.

  48. Lord Scalia: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.’

    Nobody ever voted for judicial review.

    Nobody ever voted for the incorporation doctrine.

    Scalia; intellectually dishonest?

    Never.

  49. I find I need to be very timid in sharing the sort of humour my American Government professor used in his class to get students of lower will-to-effort to learn. The last time I set out to share humor, albeit humourlessly, it imploded explosively. Yikes!

    So, I now deteriorate further.

    Abridgment, per Black’s 6th through 10th appears to me to be about reduction in amount, so, as the amount of free speech, if not abridged, is not numerically stated, I shall take the constitutional amount of free speech to be 0.000 (repeating decimal).

    That solves the abridgment problem. Abridgment obviously, using its plain meaning, is an absolute value function. There is no free speech less than zero. The constitution does not permit free speech. Human brain biology also does not permit free speech, because of the electrochemistry of neurons and synapses, so the powers of free speech reserved to the public are also non-existent.

    All these years, finally I understand the plain meaning of plain meaning. It is synonymous with nullity.

    Meds… Where are my meds? Is that a unicorn in the garden?

  50. Brian,

    “I find I need to be very timid in sharing the sort of humour my American Government professor used in his class to get students of lower will-to-effort to learn.”

    So now he was joking about ecclesiastical courts?

    Nope. Not buying it.

    And although you may view language differently because of your condition, it doesn’t negate that language operates off the concept of agreed upon meaning – either culturally or professionally defined. As words are not the objects or actions they represent, the meaning is symbolic, but it is still meaning. Otherwise all of language would simply be gibberish. Which in some cases, it still can be when words are used out of context and/or contrary to their meaning.

  51. Blouise,

    Just because he may have ingested some of my non-prescription meds, that doesn’t mean I share. It just means I may have been to “comfortable” to stop him. :)

  52. To those who know I am wrong, a fact I do not dispute:

    I took that American Government class at Triton College, River Grove, Illinois, the local community college for Oak Park, where I then lived.

    I was working toward a M.Ed. degree as a way to subvert the apparent intent of the then-head of bioengineering at the University of Illinois at Chicago, and the Illinois standards for teacher certification were changed while I was having my second major surgery event to delay my dying from cancer secondary to familial adenomatous polyposis. I needed an American Government class to continue toward the M.Ed. thing, but the head of bioengineering was replaced and the replacement understood and supported what I was doing in bioengineering. After I got back into BioE, that head left and was replaced by someone else who lacked the grand vision of bioengineering my advisor and I shared.

    Triton had many students who were hoping to get a job and not an education, yet had many superb professors. The American Government professor used a form of classroom Jeopardy as a way to get some of his students to pay attention, and he had a beautiful repertoire of strategies, including wake-up analogies such as court as church, which got classroom discussions going with many in the class who would otherwise have merely drifted through the term.

    There is a tad of a concern which terrifies me to mention, based on some prior misunderstandings of my professional engineering concerns. In general, members of the bar are not expected to understand the way stress concentrators work as tensors in the propagation of cracks in brittle materials, and that is just fine with me.

    Alas, by merely being alive and going about the routine activities of my daily life, I am expected to obey laws which I find contradict other laws I expected to obey even though obeying one such law is inextricably a violation of the other. This, as my father-in-law, Allen J. Hamilton, P.E. independently brought to my attention, creates severe intrinsic-conflict difficulties from time to time for civil engineers such as he was.

    If people who work professionally in making and enforcing societal laws were the only people expected to obey their laws, and if only engineers were expected to obey their engineering laws, there would be no conflict between such professional disciplines.

    Alas, engineers are required to obey both engineering laws and social laws, even when engineering laws are incompatible with social laws, whereas attorneys, legislators, and judges have no need to heed any engineering or scientific law not already included within their social laws.

    Were I actually a piece of valuable fertilizer, or filled with same, I might suggest a science book for you to read, one in my personal library. For those not versed in the “hard sciences,” this may be an easy book for starting to learn.

    When I come upon someone who is interested in learning about science, but whose understanding of neurobiophysics is at the stage of the twelfth century, I have just the book to recommend. I can tell you all what it is, you, like me, will have to find your own copy to read. The title page of said book:

    A System of Natural Philosophy in Which the Principles of Mechanics, Hydrostatics, Hydraulics, Pneumatics, Acoustics, Optics, Astronomy, Electricity, and Magnetism are Familiarly Explained, and Illustrated by More Than Two Hundred Engravings, To Which Are Added, Questions For the Examination of the Pupils Designed For the Use of Schools and Academies. Thirty-First Edition. By H. L. Comstock, M.D., Mem. Con. M.S.; Hon. Mem.R. I. M. S.; Author of Noted to Conv. on Chemistry, Auth. of Gram. Chem., of Elem. Mineralogy; of Na. Hist of Quadr. and Birds, &c. New York: Published by Robinson, Pratt, & Co. No 259 Pearl Street; and Sold By the Principal Booksellers Throughout the United States. 1836.

    I am inclined to recommend this book because I have read it more than once, and I surmise that the leap from a twelfth-century hard science understanding to about the end of the first third of the nineteenth century may be a manageable effort.

    This book has a complete listing of the planets on page 203, the list, from closest to the Sun to farthest from it, in outward sequence, is, Mercury, Venus, Earth, Mars, Ceres, Pallas, Juno, Vesta, Jupiter, Saturn, and Herschel.

    I just checked Wikipedia, and I will need to edit the page named “Planets.” There are two names not in my Natural Philosophy book, which must be errors, and there are four other planets missing. No wonder Wikipedia is not a source that can be trusted. I have my book, and the book cannot be wrong.

  53. J. Brian Harris, Ph.D., P.E. sez: “I have my book, and the book cannot be wrong.

    **************************************

    Surely sir, you jest. If you truly believe that, I hate to burst your bubble. Yes, books often are wrong. No matter how good the author, no matter how diligent the editor, books have errors in them. Some errors are deliberate, as we have seen in the current disputes over textbooks in Texas. The Commonwealth of Virgina is looking into awful factual errors in some of their school books.

    In addition to errors in books, there is the transition from the page to the eye and brain as well, an area fraught with the opportunity for errors of commission and omission, not to mention outright forgetting. As has been pointed out to you repeatedly, what you think you might know and what is factually true is not always the same.

  54. I have always found Scalia to be a sexist pig; and, he continues to prove me right. I have no respect for him or the present Supreme Court. Justices like those on the Court presently seem to work easily at earning my disrespect. I also think they have dishonored the Supreme Court.

  55. BBB,

    I’ve invited you to explain to me why the First Amendment can have exceptions but a hypothetical Constitutional ban on legislated gender based discrimination can’t. Please do. I’m honestly curious as to what you think the distinction is.

    That’s a much more effective way of conversing than saying “well you just don’t get it.”

  56. Otteray Scribe:

    Yes!

    “…the book cannot be wrong” is plausibly the upper limit of my sarcastic humour attainment to date. Or, am I joking now?

    The most definitive, recent source for me is the movie, Dogma. Being Dogma, I cannot question it. In the movie, Dogma, is the dogma that humanity is a joke, who am I to question Dogma?

    It is improper to question precedent in a field not within one’s established professional competence. My dad took astronomy as one of his college minors, I took not one astronomy course while at Carleton, so I am unqualified to question an expert in a field in which I am not qualified.

    What right would I have to question an qualified expert such as Dr. Comstock, who was obviously competent in astronomy. Furthermore, Comstock does not mention in his book any way where new planets can be created, so his list has to be complete.

    It is well known that Wikipedia, because people like me can edit it, is not an authoritative source. So, in the interest of scientific integrity, I needs be must go with a qualified expert and not with a source which has no clearly documented provenance.

    Being skeptical, I decided to check out that “f = m*a” thing. Nowhere to be found in Comstock, (op.cit.) so that equation has to be fake. I read every page in the book to the end of the very last page, no. 295.

    I did learn something, though. The moon is inhabited, from page 259, “The earth, seen by the inhabitants of the moon, exhibits the same phases that the moon does to us, but in contrary order.” It is absolutely certain that there are inhabitants on the moon, else how could the moon’s inhabitants see the earth?
    I just love learning new scientific facts.

    I am so grateful that I never heard of skepticism.

  57. Brian,

    Then you should be reading Newton. F=ma is the expression of the Newton’s Second Law of Motion. It is verifiable through repeatable experimentation. When it comes to physics, Newton was not only an expert, he literally wrote the book. As an engineer, you should know this without having to resort to outdated astronomy texts.

    There is a difference between “skeptical” and “nonsensical”.

  58. BBB,

    Just like the incorporation doctrine, judicial review is nowhere to be found within the constitution.

    The point is to illustrate the flaw in Scalia’s thought process.

  59. If Comstock, A System of Natural Philosophy is too recent to have collected the authority of the ages, I can do a little better. I have the replica printing of the first, three-volume edition of the Encyclopedia Britannica (pardon my mis-spelling.)

    Not only do I have on hand that edition, but the purportedly most scholarly encyclopedia ever, the Britannica Eleventh Edition, which I inherited from my mother who inherited it from her Morningside College History professor uncle, Charles Faust.

    I am a student of the methods of Sun Tzu, and have on my desk the R.L. Wing version of “The Art of Strategy,” Broadway Books, New York, 1988, published in paperback in 2000. In my search for ways of improving public safety as a bioengineer, I make use of every form of strategy, including game strategy (Remember John Nash and his Economics Prize?).

    So, the strategy I have briefly explored is role-reversal, to see who can make my arguments better than I can by making tragicomic versions of traditional legal arguments as parody.

    When I began with, simple to me, scientific arguments, I met with sometimey astonishing results. So, using what I know of psychoanalytic methods, I set about with a role reversal fork gambit, and, sure enough, others are making my arguments for me.

    Sorry about that, to be ethical as an engineer, I had to use subtle enough humor to get useful research results while planting sufficient evidence as would, if needed, corroborate my intentions of genuine decency in the midst of what I continue to experience as a devastating aspect of the state of human society.

    My motive and intent are simple. I have not misrepresented anything, once one sorts out what is said as cynical counter-argument. My maternal grandmother’s picture really is deemed by others skilled at recognizing the facial features of “black people” as a black person. I have never explored the research value of the court jester role before, and I made it as clear as I could imagine doing that such has been what I have been doing.

    My wife and I adopted an eleven year old boy, Michael, who we were told needed a home. The agency, the oldest in Illinois, did a very protracted home study, which my wife and I passed without difficulty; my being autistic was not a problem for the agency, even though I never talked about it directly with the agency.

    Few couples ever go through such intense scrutiny as we did, it was a group process and not every couple was deemed fit to be adoptive parents.

    The agency set a condition for our adopting Michael, that he could visit his two brothers who bracketed him in age. I regarded that as posing serious risk for Michael, and my regard became validated when the State of Illinois put the older brother back with his biological parents. We were told that Michael was in need of being adopted because of chronic neglect from his alcoholic parents.

    While adoption records are supposed to be confidential, the attorney our late son’s mother-in-law hired dumped the confidential information into the public record in ways I thought utterly unethical. So, the confidential information became public information.

    Why did the Ford Motor Company not weld the car properly? Same reason as caused the sinking of the Deepwater Horizon vessel? Laws which mandate profit before safety for corporations unless the safety issue is blatantly manifestly unavoidable?

    The system of laws in the U.S. acted in such a way as to do horrific damage to my close family. Why that happened and what people might learn to usefully do differently, in ways more truthful and decent than are now possible is what drives my effort.

    I forgive everyone and every belief that led to that horrific damage, I seek no compensation, no justice for past events. Yet, in conscience, I cannot abandon the possibility that, though compounded personal and family tragedies, I may yet be able to share something useful of the respectful decency in which it has been given me to live.

    Along the way, some comments were made which I recall were to the effect that, if everyone were honest, as I suggest we might usefully become, we would not need laws. I find such a notion biologically absurd.

    Having no laws is the terrible anarchy of permissiveness which was so dreadfully awful that laws were made, and, for a time the laws seemed to work, Indeed, they first seemed to work so well that, as though laws are intrinsically and extrinsically actual productivity and value such that, the more laws we have, the wealthier and more productive we become. That makes a great mantra, but one rejected by the libertarian camp.

    Make enough laws, and they combine to form a coupled system of coupled systems, the coupling coefficients of which become unfathomably trans-computational. That is where we seem to have arrived, a system of laws which may have become a temple as poetically described by Justice Robert Jackson in the 1940s, a temple of law with so many added stories that it cannot fail to collapse.

    Such collapse would mimic the mode of failure of all revolutions, driving us back to the tyranny of permissiveness, which is no less tyrannical than authoritarianism is.

    There is a practical alternative, which is how I live and the method, which I have been working at learning whether I may be allowed to share it here, is authoritative-reciprocal, which is bereft of permissiveness as it is bereft of authoritarianism.

    I seek to abate the system of law that crushed to death Giles Corey, who, seeking the mercy of sooner death, cried out, “More weight.”

    The dismay of the rabble (which includes me) about the present political situation portends of another violent revolution, if we, the people, decide to keep the vicious cycle of either permissive or authoritarian going.

    And, having had my colon removed to prevent colon cancer, I assure you all that I am far less full of fertilizer (there is that objectionable f-word again), than almost all other people with their colons intact are. They good physicians and surgeons didn’t even leave me a semicolon, just a rectal stump and an ileo-rectal anastomosis. Often, one meal has gone through and out before it is time for the next meal.

    So, when I am told that I am full of f-word, I skeptically challenge the validity of what I am told.

    If I am authoritatively informed that I belong not here, I will gladly find another sandbox for my playing advanced-sandbox and see who will play the sandbox game of decency and kindness within authoritative reciprocity with me.

    At the Carleton reunion in 1991, one of my classmates who was also a freshman on third Davis commented to ma about the bull-sessions other men on the floor had regarding me. I had opted for a single room so my being autistic would not trouble someone not able to live comfortably as a roommate. What my classmate said was that the other men on the floor, after many bull-sessions, finally concluded that I was some sort of genius beyond what they had thought possible.

    I seek to invest whatever talent I have toward the safety of us, our children and their children, ad infinitum, to such extent as I may so do. For my daughter, for your sons and daughters, I am willing to surrender (but not, in the traditional sense, sacrifice) my life that they may be better able to live in a world actually safe.

    Except as the hurts are fatal, hurting people does not make for fewer hurting people.

  60. “judicial review is nowhere to be found within the constitution”

    I know that, but it definately was something that Congress could grant under Article I, Section 8.

    “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

  61. Bob,Esq:

    Not word one about “innocent until proven guilty” either in that old parchment. Obviously a liberal trick perpetrated on the good, stoic, conservative folk of colonial America.

  62. How do I simulate an equation editor here?
    Suppose I try to put forth the vector equation…
    _ _
    F = m*a

    The overline indicates that the force and the acceleration are vectors, and that vector equation is applicable to, and only to non-deformable bodies.

    If the body is deformable and the force distributed, we are in the realm of tensors.

    I am all for a good joke, yes I am.

    To seriously suggest that someone who does attempts to teach me the ways of algebraic physics knows more about physics than I know of law, process of law, and procedure of law, would be something akin to the best joke I ever heard…

    I just love stupendous jokes. Amen.

    Either way, joke or not, what you write I find of great help to me in my work.

    Muchas gracias. Danke schön.

  63. WordPress makes a lousy equation editor, it deletes needed spaces, correcting a mistake I did not make. \

    For most of my life, people have sometimes corrected mistakes I did not make.

    Not a new experience for me.

    Try another way to edit an equation, to see whether WordPress will outsmart me again, or not…

    Let “F” be the force vector.

    Let “A” be the acceleration vector.

    Then:

    “F” = m*”A”

    Wonder if I found a way to symbolize a vector equation?

    Learn and live, here goes…

  64. Dr. H.: “…the book cannot be wrong” is plausibly the upper limit of my sarcastic humour attainment to date.”

    It was cool, I got it. Sarcasm is tricky in print so many people puncuate it with “[sarcasm]” before or after the statement or a :-) A smiley is: colon or semi-colon/no space/dash/no space/close parentheses.

  65. Blouise,
    If you’re parking Friday AM at Cedar Hill Baptist Church to take the free shuttle to concert, say Howdy to my parka-clad buddy, Willie Brown, with whom I usher Thursday nights. Fine, retired (Nela Park) gent, quick to laugh. Proud to have him as my boss. Loved by all.
    He’ll tell what kind of rotten swine I am.
    Edward, Duke of Woolworth COD, CRS

  66. ‘Tain’t as sarcastic if it is identified as sarcastic; said sarcastically [sarcasm] :-) [double negative?] [ ;-( ]?

  67. mr. ed,

    Usually I am “dropped” off at the door however … I have a few chums that park elsewhere. I will make inquiries and send him greetings!

    Do you put on your redcoat at the Playhouse?

  68. Lotta to Dr. H,

    “Sarcasm is tricky in print …’

    ==========================================

    Tell me about it …

  69. Gyges,

    I’m sorry I didn’t get back to you last night. I was blogged/blawged-out.

    If I understand you correctly; you want to know why there is an exception to the abridgment of free speech, but not one to the hypothetical prohibition to discrimination based on gender.

    In the legal world there seems to be an exception to every rule. Court rules provide an excellent example. Nothing is set in stone as long as someone can present an argument persuasive enough to get the judge to accept it. That’s why we have appeals, and why we make the decisions of the highest court controlling. Humans create the laws/rules and we humans are flawed. Sometimes, somebody figures out a good reason to have an exception to the rule.

    I would prefer to have exceptions to the rules set out in the Constitution be remedied by amendment. The Court has, at times, decided that an amendment is not needed. I don’t agree, but the majority have come to accept it, so it is what it is. For the most part, it has been an instrument of good.

    I will concede that the hypothetical prohibition would likely be subject to exception, but that isn’t how I designed it. Maybe that’s why the Fourteenth Amendment didn’t create a prohibition.

  70. “Oh wait. First prove the 14th was legally approved.”

    Tootie,
    The proof is that the 14th amendment has been accepted by most authorities as a legitimate amendment since its’ adoption. Surely you should understand that since the only way to prove that George W. Bush was a legitimately elected President is by the fact that he was accepted as such.

  71. Mike,

    I think one of our biggest problems of today is that all things accepted by those in power (“the authorities”) are legitimized because the people, in a representative public are without power to prevent it. The remedy is supposed to be a change, by election, of those authorities. Unfortunately, “the authorities” just get new faces.

  72. True to form. Buddha is Laughing makes ad hominem attacks: “If you [mahtso] want to back that asshat Scalia, that’s your business, but you’re not too bright if you think there is wiggle room on the meaning of “all”.” (I see it as a two-fer – Justice Scalia and me.)

    Did I miss it, or did you not address my questions as to your interpretation of the 1st A? And those 17 year-olds?

    Maybe I’m not too bright, because I thought I was clear: it is not how the dictionary defines “all” that is at issue; what is at issue is my assertion that the courts do not always rely on dictionary definitions when construing statutes. I started to type out an example, but given your level of discourse, I see no reason to. For those who care, see, for example, the Arizona Downs case (637 P.2d 1053) as to what the word “shall” means in Arizona’s statutes. And I believe cases cited by others in this thread also show that dictionary definitions are not necessarily what will be used by the courts.

  73. Maybe I wasn’t clear either.

    Arguing over the meaning of “all” is like arguing over the meaning of “is”, Bill Clinton. Something either “is” or it “is not”. “All” has only one relevant meaning and no court in the world can wiggle out of it without some severe linguistic gymnastics and tortured logic. Either a set is “all” or it is not, it is by definition a subset. Period.

    And if the not too bright barb stung, then there you have it.

  74. Democrats, Women’s Rights Leaders Blast Scalia Comments On 14th Amendment

    WASHINGTON — Leaders of the key women’s-rights groups joined congressional Democrats at the Capitol Thursday to warn that Supreme Court Justice Antonin Scalia had issued “a wake-up call” when he said the U.S. Constitution does not protect women from discrimination on the basis of gender

    http://www.huffingtonpost.com/2011/01/06/scalia-fourteenth-amendment-dems-women_n_805297.html

  75. “As words are not the objects or actions they represent, the meaning is symbolic, but it is still meaning.” ~Buddha

    yes indeed! and they can be used as weapons or bandages or walls or foundations or steps….and it reflects on us how we use them. I don’t agree with Justice Scalia…but I am disturbed that a man in his position would say those words and be serious about it.

  76. What they really want to do is nullify all the laws that have relied on the Commerce clause for authority. Thomas and Scalia are already there.

  77. I want to second Buckeye’s comment about Scalia and the Commerce Clause. These radical Justices are there for one reason and that is to turn the legal world back to the 50’s. The 1850’s!

  78. J. Brian Harris, Ph.D., P.E.: “‘Tain’t as sarcastic if it is identified as sarcastic; said sarcastically [sarcasm] [double negative?] [ ;-( ]?”

    I know. Nothing kills a joke or a bit of sly humor, mockery, satire, sarcasm, as having to telegraph it. Unfortunately, the color and inflection we give spoken words is not so easy to discern with the printed word.

    I read your postings with an eye toward your humorous flourishes. You have on occasion been so subtle with it as to bury it but I like easter egg hunts so… Maybe too, I see humor where none is intended. After complimenting someone on a long posting I though was a masterful bit of satire (on another weblog) I was chastised by the poster for denigrating his/her Very Serious Posting. LOL. I couldn’t help it if it worked better as satire; I was just acknowledging the fact :-)

  79. When I am the most serious, I use the most subtle, multi-layered humor, seriously.

    Y’all may have noticed that I respond, though not with chastisement in any usual way. I use words to share things I allow someone else may find of some value, I never know who or what such will be, nor do I make an effort that way.

    I welcome being chastised, it helps me to make better sense of words, and, at times my choice of words, such that they made proper sense to me, obviously meant nothing I ever had in mind.

    When folks do not fuss with me, after a while, I become concerned. I have to figure out if I am in a waking dream, or if my words were a disaster worse than I had imagined possible, as has happened, or, I may be mistaken about that.

    Perhaps because the way autism-insufficient people sometimes assemble sequences of words rubblescrubbles me, I try word sequences to find what may or may not work, as is being done here and now.

    If you see humor in my writing that I did not notice, it has to be there, and I overlooked it.

    When word patterns happen as happened with BIL a while ago, instead of using words of similar character, I haul out something so blatantly ridiculous in context that people may think (briefly?) I am serious in using, e.g. a 1836, high school natural philosophy book as an authoritative source, the double-entendre being that, when it was written, for its purpose it was about as authoritative as any such book.

    The triple-entendre touches upon my bioengineering research which hints to me that some of law precedent yet in use may be in the league of that natural philosophy textbook.

    Case in point? Antonin Scalia?

    Who is pounding on the door, shouting for me to come out with my hands held high?

    Why all the bright flashing lights surrounding the house?

    What lawyer would risk defending me?

  80. Mike Spindell

    I’m with Thom Jefferson. He said “no matter how long the British oppressed the colonists, they would never acquire the right to oppress them by having done it repeatedly.”

    I feel the same about our imperial supreme court. By now it is obvious that Jefferson was right and John Marshall was wrong. To wit, we now have a police-state (greatly because of abusive powers of courts).

    It should be clear to all that we need to abandon the power grabbing policies Marshall established and return the court to its original place: that of interpreting the law instead of legislating.

    From what I can tell, Scalia (et.al.) abused the 14th in Bush v Gore. But any such abuse appears completely in keeping with all the previous abuses of the 14th by the judicial imperialists on the court.

    I oppose that too.

  81. BBB

    Look. Ms. Stahl confused her herself (she is a nitwit). She started off talking about Abu Ghraib and then half way through her own darn sentence began talking about law enforcement officiers torturing people. Thus she was confusing cops with soldiers.

    Cops and soldiers do have different procedures in handling those they apprehend as one group is citizen arrestees and the other foreign prisoners of war.

    LOLOLOL. Yikes, what don’t YOU get about that?

    Torture is a crime. Punishment is lawful (it just cannot be cruel or unusual). She acts like they are both the exact same thing. The meanings of words seems to confuse her a great deal.

    Law enforcement officers are not soldiers. For example Lyndie English (a soldier at Abu Ghraib) wasn’t a law enforcement officer enforcing a court ordered punishment. This is my point. Stahl didn’t even know how to frame the question correctly. I get raked over the coals for my crazy posts here, this woman had a few good questions to ask and got herself all confused. And she gets paid for it! LOL

    She said: “If someone’s in custody, as in Abu Ghraib, and they are brutalized by a law enforcement person, if you listen to the expression cruel and unusual punishment, doesn’t that apply.” She is talking as if prisoners of war have trials (right in the midst of war and captivity) to determine their punishment (presumably it won’t be cruel or unusual)!

    Excuse me for laughing, but it really is amazing.

    Right at the beginning the judge says torture is illegal and he doesn’t like it.

    What is the problem with that?

    After that she spastically jumps to the subject of actions taken by cops presumably BEFORE a court makes a ruling (which cannot be punishment since a court hasn’t ordered it). It seems that you think that the illegal torture by a solider that Scalia (presumably) and I are talking about is the same as a legal sentence (punishment)received after a verdict is rendered.

    It’s not.

  82. Elain: Yes, I realize that punishment can refer to rough handling. I even had it included in my post and took it out because I don’t believe that is what Stahl was refering to.

    But thanks.

  83. “I feel the same about our imperial supreme court. By now it is obvious that Jefferson was right and John Marshall was wrong. To wit, we now have a police-state (greatly because of abusive powers of courts).”

    Tootie,
    I do agree with this statement. However, given past comments in general I assume that we do have our differences regarding SCOTUS. Thes would include on my part that the most oppressive governmental forces in our nation have been at the State and local levels. Given that some SCOTUS decisions were needed to
    put and end to those non-constitutional practices. I cite Jim Crow as a particularly egregious instance.

  84. I should clarify.

    I believe the 14th amendment was written to cover the equal protection of female slaves. As equal as it would have been for “free” women of that day.

    The 14th was written for slaves. This means it wasn’t written for women such as myself or homosexuals because we are not slaves. There is no one alive today for which the equal protection business is applicable.

    Unless we start up slavery again (which socialism is).

    Hey…that gives me an idea.

  85. Mike:

    Jim Crow was loathesome, though being from the north I didn’t really see segregated bathrooms, etc. Yet, at least some escaped and remained relatively free (whites). Though, I must say the black family was intact throughout that entire period and continually making economic gains.

    The disenfranchisement was deplorable and without excuse.

    As the government now has the abusive power the states once had no one, of any race, will escape the boot about to be placed on our necks (God forbid).

    I would like to see blacks be as concerned about freedom as they once were. They sought to be free and now they seem willing to be subjugated to a central government.

    They seem to have forgotten their dream. If they rekindled it, it would be the greatest chapter yet in black American history.

  86. “Though, I must say the black family was intact throughout that entire period and continually making economic gains.”

    Tootie,

    I think you should re-check your source on this. During the slave era black family structure was for the most part discouraged and destroyed. During Reconstructio and the Jim Crow era there were many other attacks made upon family
    structure, which incidentally also included the families of white soldiers killed in the war. As to the economic gains that was only true for a small percentage.

  87. Regarding Leslie Stahl and torture:
    Since rights listed in the Bill of Rights are examples rather than exhaustive, * I think it unlikely that founders thought torture to be unconstitutional if used on criminals, but fine otherwise.
    * Secondly, if torture cannot be punishment, then it cannot be retribution.
    * Thirdly, are foreigners protected by our constitution? As a practical matter, the Bill of Rights helps with counter insurgency.

  88. Tootie Re Jan 09 at 4:24
    One of the first uses of the 14th Amendment was the “slaughterhouse case”. http://en.wikipedia.org/wiki/Slaughterhouse_Case
    No one said at the time that the 14th Amendment did not apply because of the race of the butchers (white). But this was a crummy case, and a better one was of Chinese laundrymen in San Francisco, who claimed equal protection of the laws, and prevailed.
    http://supreme.justia.com/us/118/356/case.html

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