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.

Trifectas: Clarence Thomas and the J Continuum

As loathe as I am to be put into any sort of sentence, group, state, country, or world along with Supreme Court "Justice" Clarence Thomas, this is my third post for today -- a trifecta of non-thesis related work -- and this Slate article uses my favorite word to describe the assholish stylings of Thomas as he pretends, ever so faintly, to have used principles to come up with unprincipled decisions on free speech and integration. Some money shots:

Despite the vast differences between public education then and public education today, Justice Thomas evidently believes the question of whether students have free-speech rights should be answered by conducting an imaginary séance with 18th- and 19th-century Framers and ratifiers, who should be asked: Do you think public-school students have a constitutional right to free speech while in school? This line of inquiry is about as productive as asking an only child: Imagine you have a sister. Now, does she like cheese?...

...he asks how those alive at the relevant time would have applied that language to a set of facts different than we face today. This elevates the expectations of the ratifiers and Framers over the meaning of the text itself. But the meaning of the text—as Justice Thomas surely would agree—must be paramount over the subjective expectations of any individual, whether alive or dead...

For someone lauded as the originalist's originalist, this is a pretty weak showing. For someone looking to advance a conservative political agenda, however, these three cases constitute a sort of trifecta: Curtail voluntary integration and student rights while boosting the rights of corporations. Not a bad couple of weeks... [i]n two of the three most important cases of the past term, Thomas was forced to abandon originalism—his version of it, anyway—in order to reach a politically conservative result. In the other, his originalist reasoning was weak at best.

Go. Read the whole article.

God I hate Clarence Thomas.