What part of self-evident doesn't Scalia understand, aka We hold this important shit to be obvious, you Wackaloon

Mad good post over at PhysioProf on "Constitutional Originalism, Natural Law, and The Ninth Amendment." Now, J is not a fan of Natural Law when it is taken literally, as is believed by some libertarians -- that some rights somehow derive from the very status and being of human beings and the universe, such as right to property. I firmly believe rights are human-made and thus human-determined; that doesn't mean I believe they're arbitrary per se. There are rights that we have come to recognize as fundamental for dignified human life, and I do believe these are fundamental, based on the sort common-sense humanism of them (the right against arbitrary/unreasonable search and seizure, freedom of religion, freedom of press, the right to food security/food sovereignty, unreasonable restrictions of movement, etc. etc., such as one might see in our Bill of Rights, the Universal Declaration of Human Rights, and the 1966 International Covenant on Economic, Social, and Cultural Rights, still not ratified by the US Congress, btw).

Anyway. Read on, read PhysioProf -- I don't think he even swears in this one.

Preview:

Conservative legal theorists spend a lot of time talking about how the text of the Constitution should be construed only as it was understood at the time of the Founding and Ratification. Building on this idea, they rail against “judicial activism” and the “creation of new rights” that are not “found in the text” of the Constitution. This provides a theoretical basis for conservative claims that there is no Constitutionally protected right to many things they despise: gay marriage, abortion, health care, housing, food, etc.

As I will describe below, this textual originalism is bad history and bad law. Furthermore, this theory only has any jurisprudential legs at all because of an unfortunate happenstance of 20th Century Supreme Court jurisprudence.

Yikes! C'mon, Obama, I mean, seriously.

While I'm quickly tiring of the meme of the tone, "How could he?" in reference to various things the O-Administration has done with varying degrees of regressiveness, nefariousness, opacity, or incompetence -- simply because I think it was silly to expect him to be that different in the first place, and it is simultaneously too early to be decisively disappointed but not at all too early to push him with activism and indignation. "How could he?" is more shocked woah-is-me portrayals of personal betrayal, which I guess I share sometimes, but I really never thought O was more than, as J-Mom has said, "Perhaps the best you can get in terms of a mainstream politician" which means to me "Trust him as far as you can throw him... and then verify how far you've thrown him." A sense of personal betrayal, while noble in politics in that it means you felt a personal connection and promise form someone, also seems rather naive to me, and in any case, it's not the same as activism (though it can motivate action, so I shouldn't be so down on it.)

Anyway, point is, according to this story (which I must admit I somewhat trust but have not verified from other stories),

Alaska prosecutors do not dispute that advanced DNA testing could prove Osborne's innocence beyond any doubt. But for nearly a decade, they've refused to allow him to do this testing.
To my great disappointment, recent news reports indicate that the Obama Justice Department has decided not to reverse the Bush administration's decision to weigh in on Alaska's side in the case, District Attorney's Office for the Third Judicial District v. Osborne. As has been said many times, the Justice Department's mission is to do justice. It is not to seek a conviction—or to uphold one—at all costs.

Former FBI Director William Sessions continues in his Slate article, that

Alaska's primary argument is that testing is unnecessary because non-DNA evidence demonstrates Osborne's likely guilt... Alaska contends that evidence of innocence does not, by itself, matter once a person has been convicted, or if the trial was free of constitutional and other defects. That goes too far in elevating the principle of finality over basic justice.

Certainly this doesn't seem like the side O's Justice Dept. should be on. Am I wrong? Is Sessions wrong? Is this just a brain fart on the Administration's part? Is Darth Vader Osborne's father? Please, J-fans, let me know.